Terms of Service
Last Revised November 6, 2018
Welcome to the INTURN Service. The INTURN Service will, among other things, allows Vendors (as defined herein) and Buyers (as defined herein) to send and receive assortments of product quicker and with richer content, enables Vendors and Buyers to calculate product margins on the Service, provides for efficient communication and negotiation between Vendors and Buyers, enables Vendors to identify and engage with new Buyers and enables Buyers to identify and engage with new Vendors. Buyers and Vendors can engage with each other in any manner supported by the Service; these Terms of Service shall apply to any such engagement, regardless of whether it is on the INTURN platform, by email or any other supported means. Some of these services may require fees which would be governed by a separate agreement between the parties in addition to these Terms of Service. “Vendors” mean users who sell or promote the purchase or sale of any goods, services, or other items on the Service, and “Buyers” mean users who access, view, or purchase any goods, services, or other items on the Service.
INTURN reserves the right, at its sole discretion, to modify, add or remove any terms or conditions of these Terms of Service at any time without prior notice or liability to you. Any changes to these Terms of Service shall be effective immediately following the posting of such changes on the Service. You agree to review these Terms of Service from time to time and agree that any subsequent access or use by you of the Service following changes to these Terms of Service shall constitute your acceptance of all such changes. If you don’t agree with the new changes, you are free to reject them; unfortunately, that means you will no longer be able to use the Service.
2. Eligibility and Registration
You must be 18 or over, or the legal age to form a binding contract in your jurisdiction if that age is greater than 18 years of age, to use the Service. If you are under the age of 18 or the applicable legal age in your jurisdiction, you may not use the Service. Access to the Service is void where prohibited by applicable law, and the right to access and use the Service is not authorized in such jurisdictions. We can’t and won’t be responsible for your using of the Service in a way that violates the law. You will be required to register with INTURN and may be required to be pre-approved in order to use certain functions of the Service. When completing the registration form, you are required to provide true, accurate, and complete information, and maintain and promptly update this information. If you provide any information that is not true, inaccurate, or incomplete, or if INTURN has reasonable grounds to suspect that the information is false, inaccurate, misleading or incomplete, INTURN has the right to suspend or terminate your membership and access to the Service. As part of the registration form, you will be asked to provide your name, a valid email address that you own and use and to select a password (your “User ID”). You may not: (a) enter, select or use a false name or an email address owned or controlled by another person with the intent to impersonate that person; (b) use as a User ID a name subject to any rights of a person or entity other than yourself without appropriate authorization; or (c) use a User ID that INTURN, in its sole discretion, deems offensive. INTURN reserves the right to refuse registration of, or cancel a User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password and are fully responsible for all activities that occur under your User ID, including use by any third party whether or not authorized by you. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your account. Your User ID shall be for your own internal and personal use only, and not on behalf of or for the benefit of any third party. You may not transfer your account to anyone else without our prior written permission. You agree to: (y) immediately notify INTURN of any unauthorized use of your User ID, password (or any known or suspected breach of security, including loss, theft, or unauthorized disclosure), and (z) ensure that you exit from your account at the end of each session.
3. Prohibited Activities
You represent, warrant, and agree that you will not contribute any Content (as defined below), offer any products, services, or items on the Service, or otherwise use the Service or interact with the Service in a manner that may constitute, result in, or otherwise in connection with: (a) illegal and/or unauthorized use of the Service, including collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Service is prohibited; (b)commercial advertisements, affiliate links, and other forms of solicitation, which may be removed without notice and may result in termination of your access to the Service; (c) infringement or violation of the intellectual property rights or any other rights of anyone else (including us); (d) listing, selling, offering, or otherwise providing any replicas, counterfeit items, unauthorized items, stolen property, or any items that you do not have a right to engage in the aforementioned activities; or (e) violation of any applicable law or regulation, applicable agreements, guidelines, regulations, or policies that we make available on the Service or otherwise in a manner deemed objectionable by us in our sole discretion. Appropriate legal action will be taken for any illegal or unauthorized use of the Service.
4. Third Party Products, Services and Content
You acknowledge that the Service may allow you to access links, descriptions and other materials, including, but not limited to, marks, logos, brand names, text, graphics, data, articles, photos, images, illustrations, and so forth (collectively, the “Third Party Content”) of Vendors or other third-party content and/or service providers (collectively, “Third Parties”). In addition, you may purchase products and services from a Vendor, or sell products and services to a Buyer via the Service. Vendors and/or other Third Parties may require you to register, provide information about yourself and/or open an account prior to being able to utilize the content or services available, or to purchase the products or services they offer. Such information may include personally identifiable information. There may also be separate terms, conditions of use and policies associated with such Third Parties and you should carefully review such terms, conditions and policies. Your use of any Third Party Content, or purchase of products from a Vendor, is subject to the conditions, if any, that each of those Third Parties have posted. You agree that all purchases and sales of products and services made via the Service are subject to the terms, conditions and policies of the Vendor from whom the products and services being purchased, and that you will have read and agreed to all of those terms, conditions and policies prior to making any purchase. Any Third Party Content publicly posted or privately transmitted through the Service is the sole responsibility of the person from whom such content originated. The inclusion of any Third Party Content or Vendor on the Service does not imply that INTURN endorses such Third Party Content and/or the products or services sold by such Vendor. Your access or use of Third Party Content and/or purchase of products or services from a Vendor is at your sole risk and expense. If you enter into communication with, purchase products or services from, or participate in promotions of Vendors or other Third Parties, any such activity, and any terms, conditions, warranties or representations associated with such activity, is at your own risk. INTURN does not control or monitor and have no duty to take any action regarding the quality, accuracy, authenticity or availability of any Third Party Content you may access, or products or services that you may purchase, through the Service, the terms and conditions on which such Third Party Content, products and/or services are offered or purchased, or the Third Party’s compliance with an agreement that it may enter into with you. INTURN shall have no liability, obligation or responsibility for: (i) any communications, purchase or promotion between you and any other Third Party, or any actions you may take as a result of having been exposed to the Third Party Content; (ii) the quality, accuracy, authenticity availability, errors or omissions of Third Party Content, or any products or services sold or purchased via the Service, or any damages or loss you might suffer in connection with it, or (iii) any information that you provide via the Service and any damages or loss you might suffer in connection with it. You hereby release us from all liability for you having acquired or not acquired the Third Party Content or selling or purchasing any products or services through the Service. In addition, while we use many techniques in order to attempt to verify the accuracy of the information our users provide us when they register on the Service, user verification on the Internet is inherently difficult, and we cannot and do not confirm or guarantee the identity of any users with whom you interact in using the Service and are not responsible for which users gain access to the Service.
5. Content on the Service
The Service includes a combination of content that INTURN creates, that our partners create, that other third parties create, and that you and our other users create. All content published, displayed, cached or made available through the Service, including, but not limited to, written content, photographs, graphics, images, illustrations, marks, logos, sound or video clips, and Flash animation (“Content”), are protected by copyrights and may be protected by other intellectual property rights such as trademarks. Content may include stock images, descriptions and product specifications that a Vendor may use for informational purposes to describe its products and services, provided that the Vendor (and not INTURN) is solely responsible for ensuring that all such information is accurate and does not include misleading information. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you may not use, copy, reproduce, modify, publish, broadcast, transmit, participate in the transfer or sale of, reproduce, create derivative works of, distribute, publicly perform, publicly display, or license, sell or in any way exploit any of the Content made available through the Service in whole or in part (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including our) rights.
You may be exposed to Content that you find offensive, indecent, or objectionable. INTURN: (a) does not control the Content posted by Vendors, Publishers, Buyers or other third parties; (b) assumes no responsibility for monitoring the Service for inappropriate Content; and (c) does not guarantee the accuracy, reliability, integrity or quality of any Content. Under no circumstances will INTURN be liable in any way for any Content, including any inaccuracies, errors or omissions in any Content or any Content that is libelous or defamatory, or any loss or damage of any kind incurred as a result of your use of any Content. You agree that you must evaluate and bear all risks associated with the use of any Content or any products or services purchased via the Service, including any reliance on the content, integrity, and accuracy of such Content, products or services. INTURN reserves the right, but assumes no obligation, to remove any Content, or prohibit the sale of any products or services, that may, in our sole discretion, violate these Terms of Service or that is otherwise objectionable.
6. Content You Submit
Subject to your compliance with these Terms of Service, you may submit company name, text, logo(s), files, images, photos, works of authorship, or any other material for cataloging and display on the Service in any manner the Service allows. All content so designated by you and contained within or provided by you in association with such content, including but not limited to all closed captioning, and metadata, is referred to collectively as “Your Content.” INTURN shall have no obligation whatsoever to return any materials you submit. You agree that Your Content is not confidential and INTURN shall be under no obligation to maintain the confidentiality of any information, in whatever form, contained in any of Your Content.
INTURN does not claim any ownership rights in Your Content. After submitting Your Content to the Service, you continue to retain all ownership rights in such content, and you continue to have the right to use Your Content in any way you choose.
By uploading or otherwise providing Your Content to INTURN, you represent and warrant to INTURN the following: (a) you are at least 18 years of age if you are a natural person; (b) all of the information comprising Your Content is correct and current; (c) Your Content isn’t, in whole or in part, pornographic or obscene; (d) you hold and will continue to hold the necessary rights, including but not limited to all copyrights, trademark rights, all other intellectual property rights, and rights of publicity in and to Your Content; (e) you have the legal right and authority to perform the acts required of you under these Terms of Service, and to grant the rights and licenses described herein. You further represent and warrant that: (y) Your Content and the rights and licenses granted to INTURN under these Terms of Service and INTURN’s authorized use of Your Content (including the public display, public performance, distribution and reproduction of Your Content) do not and will not: (i) violate any applicable law, statute, ordinance or regulation; (ii) breach any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort or contract theories; (iii) constitute counterfeit or stolen property; and (iv) violate or encourage violation of any applicable law, statute, ordinance or regulation.. INTURN reserves the right to investigate and take appropriate legal action in its sole discretion against anyone who violates this provision, including without limitation, removing the offending communication/content from the Service and terminating the membership of such violators or blocking the use of the Service. The following is a partial list of the kind of content and communications that are illegal or prohibited on/through the Service. Your Content may not include content that: (a) is fraudulent, false, misleading or is in any manner misrepresentative; (b) is patently offensive to users of the Service, such as content or messages that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (c) harasses or advocates harassment of another person; (d) involves the transmission of unsolicited mass mailing or “spamming”; (e) is unlawful or promotes illegal activities or conduct that is abusive; (f) violates the copyright, trademark or any other intellectual property or proprietary right of any third party; (g) falsely expresses or implies that such content or material is sponsored or endorsed by INTURN or that otherwise falsely misrepresents the origin of the content; (h) is threatening, obscene, defamatory or libelous or violates the right of privacy or the right of publicity of any person; (i) is pornographic or sexually explicit in nature; or (j) seeks or recommends providers of material that exploits people under the age of 18 in a sexual or violent manner, or seeks or recommends providers that solicit personal information from anyone under 18. You understand and agree that INTURN may (but has no obligation to) review and delete any of Your Content that in the sole judgment of INTURN violates these Terms of Service, that might be offensive, illegal, or inappropriate or that might violate the rights of, harm, or threaten the safety of other users or members of the INTURN Service and/or other website users, or for any other reason or no reason whatsoever. You are responsible for all your activity in connection with the Services.
7. Transacting Business on the Service
Basics.We act as a marketplace for users to interact with each other to buy and sell products, services, or items listed by Vendors on the Services, are not involved in any transactions between Buyers and Vendors who use the Service, and do not act as the Buyer or the Vendor (or agent for Buyers or Vendors) with respect to any such transactions. We have no control over, do not endorse or guarantee, and assume no responsibility for, any Third Party Content or products, services, or items provided by any Third Party that you interact with through the Service. In addition, we will not and cannot monitor, verify, censor or inspect any Third Party Content or products, services, or items provided by any Third Party. By using the Service, you release and hold us harmless from any and all liability arising from your use of any Third Party Content or purchase or sale of any products, services, or items provided by any Third Party.
Your interactions with any Vendors found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such Vendors. You may transact with any Vendor or Buyer by any means supported by the Service, whether on the INTURN platform, by email or any other supported means. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that we shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between users on the Service, or between users and any non-user third parties, you agree that we are under no obligation to become involved and in no event shall we be responsible for any costs, liabilities, damages, or expenses (including attorney’s fees) in connection with such dispute. We reserve the right to publish the applicable guidelines, policies, and regulations to regulate Vendors’ or Buyers’ standards of behaviors and dispute resolution procedures for customer complaints. In the event that you have a dispute with one or more other users, you release INTURN, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services.
Withdrawing Lots. The Vendor reserves the right to withdraw any items before the end of the sale period, halt any sale during its progress, and/or remove, screen or edit any materials or content on the Service. Neither we, nor any of our affiliates, will be liable to any Buyer, Vendor or third party by reason of the Vendor’s withdrawal of any items prior to the end of the sale period; halting any sale or auction during its progress; removing, screening or editing any materials or content on the Service; refusing to process a transaction; or unwinding or suspending any transaction after processing has begun. In the event of failure of Buyer to complete a sale for any reason, including the Vendor’s decision to refuse to process the transaction, the Vendor shall have the right to sell the property to another Buyer. In all cases, Vendor reserves the right to limit or cancel quantities of product purchased, and to refuse any order. Vendor’s determination of the successful Buyer will be final.
Closing Times. All closing times are decided by the Vendor in its sole discretion. Closing times are subject to change and may be changed at any time for any reason by the Vendor in its sole discretion.
Fees. We reserve the right to charge fees at any time. Such fees would require a separate agreement between the parties. We will try to notify you before any Service you are then using begin carrying a fee, but it may not always be possible. Any such changes are effective when we post information about the fee change through the Service. If you wish to continue using such Services, you must pay all applicable fees for such Services.
Tax Reporting. You will be responsible for paying, withholding, filing, and reporting all taxes (including sales tax, VAT, etc.), duties, and other governmental assessments associated with your activity in connection with the Service, provided that we may, in our sole discretion, do any of the foregoing on your behalf or for ourselves as we see fit. For Vendors, you are responsible for all income taxes associated with the purchase and sale of any products through the Service and reporting your earnings and filing your own payments for any sums you have earned from the sale of Your product through the Service.
We will not tolerate violations of intellectual property rights. If you are a copyright owner and believe that any Third Party Content or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”). To provide us notice of an infringement, you must provide a written communication to the attention of “DMCA Infringement Notification Dept.” at Smart SKUs Inc., 22 West 19th Street, Suite 5, New York, NY 10011 or by email to email@example.com setting forth the information specified by the DMCA (seehttp://www.copyright.gov/title17/92chap5.html#512 ). You may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that an activity is infringing your copyright. We reserve the right to delete or disable any Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers. To learn more about the DMCA, click herehttp://www.copyright.gov/legislation/dmca.pdf .
9. Your Conduct
You agree to follow all applicable laws and regulations when using the Service. Without limiting the foregoing, you agree that you will not use the Service to take any of the following actions: (a) defame, abuse, harass (or advocate harassment of), stalk, threaten, or otherwise violate the legal right of others; (b) publish, post, upload, e-mail, distribute, or disseminate (collectively, “Transmit”) any inappropriate, profane, defamatory, infringing, obscene, indecent, fraudulent, deceptive, threatening, harassing, unlawful, or otherwise objectionable content; (c) Transmit files that contain viruses, corrupted files, or any other similar software or programs that may damage or adversely affect the operation of another person’s computer, our sites, any software or hardware, or telecommunications equipment; (d) advertise or offer to sell any goods or services for any commercial purpose unless you have our written consent to do so; (e) Transmit surveys, contests, pyramid schemes, spam, junk mail, unsolicited mass mailings, advertising or promotional materials, or chain letters; (f) download any file that you know or reasonably should know cannot be legally obtained in such manner; (g) falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or the source of software or other material; (h) restrict or inhibit any other user from using and enjoying our Service; (i) collect or store passwords or personal information about other users or solicits passwords or personal information from other users; (j) interfere with or disrupt our sites, servers, or networks; (k) impersonate any person or entity, including, but not limited to, a INTURN representative, or falsely state or otherwise misrepresent your affiliation with a person or entity; (l) forge headers or manipulate identifiers or other data in order to disguise the origin of any content transmitted through our Service or to manipulate your presence on our Service; (m) run Maillist, Listserv, any form of auto-responder or “spam” on the Service, or any processes that run or are activated while you are not logged into the Service, or that otherwise interfere with the proper working of the Service; (n) engage in any illegal activities; (o) violate the terms and conditions or policies, if any, under which a content provider makes its content available; (p) Transmit content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (q) promote an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files; (r) include a photograph of another person that you have posted without that person’s consent; (r) modify, adapt, translate, or reverse engineer any portion of the Service; (t) create user accounts by automated means or under false or fraudulent pretenses; (u) attempt to contact another user of the Service outside of the Service’s messaging feature without the other user’s prior consent; (v) use the Service to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material including those that are deemed threatening or obscene; or (w) decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Service.
If you use the Service to purchase or sell products or services, you agree that INTURN is not the agent of, and has no authority for, either the Buyer or the Vendor for any purpose. In addition, you agree that you will not: (i) fail to deliver your products and services to Buyers who have paid you for them via the Service; (ii) fail to pay for products or services that you have purchased from a Vendor via the Service; and/or (iii) otherwise violate any of the terms of such purchase or sale.
You are responsible for paying all fees and charges associated with the Service in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. INTURN reserves the right to modify its fees and charges and to introduce new charges at any time. In addition to any other rights granted to INTURN herein, INTURN reserves the right to suspend or terminate your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection.
Much of the information on the Service is updated on a real time basis and is proprietary or is licensed to us by our users or third parties. You agree that you will not use any robot, spider, scraper or other automated means to access the Service for any purpose without our express written permission. Additionally, you agree that you will not: (i) take any action that imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any content (except for Your Content) from the Service or store any significant portion of the Content without the prior expressed written permission of INTURN and the appropriate third party, as applicable; or (iii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service.
11. Disclaimer of Warranties
INTURN disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, operability availability, copyright compliance, or decency of Content, information or material displayed, cached or otherwise accessible from the Service, or any products or services purchased or sold via the Service. INTURN make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Service. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Service are provided “AS IS” and without any warranty of any kind from INTURN or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product. INTURN disclaims any responsibility for the deletion, failure to store, or untimely delivery of any information or material. While INTURN endeavors to provide a sterile server environment, INTURN makes no claim that the Service will be error free, or that the Service or the servers that operate it are or will be free of viruses or other harmful components. INTURN recommends that you keep backup copies of Your Content. INTURN is not responsible for any problems or technical malfunction of any network, computer equipment, software, or traffic congestion on the Internet or on the Service or combination thereof, including any injury or damage to you or to any person’s computer related to or resulting from participation or downloading or accessing any information or material on the Internet through or in connection with the Service. Under no circumstances shall INTURN be responsible for any loss or damage, including personal injury or death, resulting from accessing the Service, from any Content, from any products or services purchased via the Service, or from your conduct or the conduct of other users of the INTURN Service, whether online or offline.
THE SERVICE, AND ALL CONTENT, MATERIALS, INFORMATION, PRODUCTS AND SERVICES INCLUDED IN, OR ACCESSIBLE FROM THE SERVICE ARE PROVIDED “AS IS,” “AS AVAILABLE” WITH NO WARRANTIES WHATSOEVER. INTURN AND ITS LICENSORS, PARTNERS, AFFILIATES AND SUPPLIERS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW: (A) ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS; AND (B) ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, ACCURACY, TIMELINESS, AND PERFORMANCE OF THE SERVICE. INTURN AND ITS LICENSORS, PARTNERS, AFFILIATES AND SUPPLIERS MAKE NO REPRESENTATION OR WARRANTY: (V) THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; (W) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; (X) ON THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE TIMELY, ACCURATE OR RELIABLE; (Y) REGARDING THE QUALITY OF ANY INFORMATION, CONTENT OR OTHER MATERIAL, PRODUCTS OR SERVICES THAT YOU PURCHASE OR OBTAIN THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (Z) THAT ANY ERRORS WILL BE CORRECTED.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
12. Limitation of Liability
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE), SHALL INTURN OR ITS LICENSORS, PARTNERS, AFFILIATES AND SUPPLIERS BE LIABLE TO YOU OR ANY USER FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF [$100], EVEN IF INTURN OR ITS LICENSORS, PARTNERS, AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH LIMITATION OF LIABILITY SHALL APPLY TO LIABILITIES ARISING FROM THE USE OR MISUSE OF OR RELIANCE ON THE SERVICE, OR ANY CLAIM RELATING TO THESE TERMS OF SERVICE OR THE SUBJECT MATTER HEREOF. . SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF, OR RELIANCE ON THE SERVICE, FROM INABILITY TO ACCESS OR USE THE SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY INFORMATION OR ADVICE, OR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SERVICE OR RECEIVED THROUGH ANY LINKS PROVIDED ON OR THROUGH THE SERVICE. THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOSS OF USE, GOODWILL, LOST DATA OR OTHER INTANGIBLE LOSSES. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICE OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE SERVICE. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Without limiting the foregoing, under no circumstances shall INTURN or its licensors, partners, affiliates or suppliers be held liable for any delay or failure in performance resulting directly or indirectly from any matter beyond its reasonable control, including, without limitation, acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
13. Our Rights
We have the right, but not the obligation, to take any of the following actions in our sole discretion at any time and for any reason without giving you any prior notice to: (a) restrict, suspend, or terminate your access to all or any part of the Service; (b) change, suspend, or discontinue all or any part of the Service; (c) refuse, edit, move, or remove any content, or other material that is available on the Service; (d) modify, add or remove any terms or conditions of these Terms of Service; (e) establish general practices and limits concerning access and use of the Service. You agree that we will not be liable to you or any third party for taking any of these actions.
You have the right to terminate or cancel your account at any time with exception to any separate agreements which supersede this agreement. Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account. You understand and agree that the cancellation of your account is your sole right and remedy with respect to any dispute with INTURN. This includes, but is not limited to, any dispute related to or arising out of: (a) any of the provisions of these Terms of Service, the Service or INTURN’s enforcement or application of the provisions of these Terms of Service; (b) the Content, products or services available through the Service; (c) your ability to access and use the Service; or (d) use of any products or services purchased via the Service. INTURN, in its sole discretion, may terminate your account and remove and discard any of Your Content without notice if INTURN believes that you have violated or acted inconsistently with any of the provisions of these Terms of Service, or for any other reason or no reason whatsoever. INTURN has the sole right to decide whether you are in violation of any of the provisions set forth in these Terms of Service. INTURN will not be liable to you for termination of your account or access to the Service. INTURN may at any time, and in its sole discretion, and without liability, terminate the Service or any product, service or feature offered in or by the Service.
Provisions that, by their nature, should survive termination of these Terms of Service shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us or disputes between users.
15. Indemnification and Release
To the fullest extent allowed by applicable law, you hereby agree to indemnify, defend and hold Smart SKUs Inc. and all of our officers, directors, owners, employees, agents, information providers, affiliates, partners, and licensors (collectively, the “INTURN Parties”) harmless from and against any and all liability, losses, costs, expenses and damages (including attorneys’ fees) incurred by any INTURN Party in connection with any claim, including, but not limited to, claims for defamation, violation of rights of publicity and/or privacy, copyright infringement, trademark infringement, or violation of any intellectual property rights or other rights arising out of: (a) your access or use of the Service; (b) any use or alleged use of your user ID by any person, whether or not authorized by you; (c) the content, the quality, or the performance of Your Content; (d) your connection to the Service; (e) your violation of any provisions of these Terms of Service; (f) your breach of third party terms, conditions of use or policies associated with the Links; (g) your offer to sell, the sale of, the purchase of, or use of any product or service sold, purchased, or otherwise available on the Service; and (h) your violation of any law or the rights of any other person or entity. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You will not settle or resolve any such claim in a manner that imposes any liability or obligation on INTURN or affects INTURN’s rights in connection therewith without the advance written approval of INTURN.
If you have a dispute with another user, you release the INTURN Parties from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
Except for Your Content, and the Content submitted by other members or users, as between you and INTURN, the INTURN Service and all aspects thereof, including all copyrights, trademarks, and other intellectual property or proprietary rights therein, are owned by INTURN and/or its suppliers and licensors (“INTURN Property”). You acknowledge that the INTURN Property and any underlying technology or software used in connection with the Service contain INTURN’s proprietary information. You may not modify, reproduce, distribute, create derivative works of, publicly display or in any way exploit, any of the INTURN Property in whole or in part except as expressly provided in these Terms of Service. Except as expressly and unambiguously provided in these Terms of Service, there are no implied licenses.
17. Miscellaneous Provisions
These Terms of Service are governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflict of laws provisions or your actual state or country of residence. You agree to submit to the personal and exclusive jurisdiction of the federal and state courts located within New York county. If we are required to bring legal action against you for violation of these Terms of Service (including collection of any amounts owed to us), we shall be entitled to recover our attorneys’ fees and costs associated with such enforcement in addition to any other remedies. If for any reason a court of competent jurisdiction finds any provision or portion of these Terms of Service to be unenforceable, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms of Service shall otherwise remain in full force and effect, and enforceable. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or of these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred.
INTURN may be required by state or federal law to notify you of certain events. You hereby acknowledge and consent that such notices will be effective upon our posting them on the Service. You authorize INTURN to send notices via email as well if INTURN decides, in its sole discretion, to do so. You agree to check the Service for notices, and that You will be considered to have received a notice when it is made available to you by posting on the Service.
References to affiliates, partners, or other terms used to describe the relationship between INTURN and certain third parties are for convenience only, used to reflect that there is cooperation between INTURN and such third parties, and do not describe, or expressly or impliedly create, a legal affiliation or partnership, or any responsibility of INTURN for the actions of such third parties.
No agency, partnership, joint venture, or employment is created as a result of these Terms of Service and you do not have any authority of any kind to bind INTURN in any respect whatsoever. You and INTURN agree there are no third party beneficiaries intended under these Terms of Service.
You may not assign, delegate or transfer these Terms of Service or your rights or obligations hereunder, or your User ID, in any way (by operation of law or otherwise) without INTURN’s prior written consent. We may transfer, assign, or delegate these Terms of Service and our rights and obligations without consent.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Please contact us at: firstname.lastname@example.org with any questions regarding these Terms of Service.