1. USER ACCEPTANCE
By using or visiting this website and related websites owned and operated by SMOSH, LLC (“SMOSH” or “us”) located at the URL: www.smosh.com (collectively, including all Content available through the smosh.com domain name and/or other related domain names which may point or direct a User to this website or related websites, collectively, the "THE SMOSH WEBSITE", or "Website"), you signify your assent to both these terms and conditions (the “Terms of Use” or “Agreement”) and the terms and conditions of SMOSH’s Privacy Policy, which is published at THE SMOSH WEBSITE and which is incorporated herein by reference. If you do not agree to any of these terms, then please do not use THE SMOSH WEBSITE.
Further, THE SMOSH WEBSITE is offered and made available only to Users 13 years of age or older and if you are not yet 13 years old, your use of THE SMOSH WEBSITE is prohibited or restricted by the laws, regulations or other governmental requirements of the jurisdiction in which you live or reside, or if, for any reason and at any time, you do not agree with all of the terms and conditions contained in these Terms of Use, please discontinue using THE SMOSH WEBSITE immediately because by using or attempting to use THE SMOSH WEBSITE, you are expressly certifying that you are at least 13 years of age and meet all other eligibility requirements for your use of THE SMOSH WEBSITE.
By using THE SMOSH WEBSITE, you understand, acknowledge and agree that you will abide by the terms and conditions of the Agreement between SMOSH and you. When we use the term "Agreement" we mean and are referring to these Terms of Use, as well as any additional terms and conditions that apply to and govern your Submissions, Postings and use of Communities and Content (all as defined below), any features, functions and services we make available to you from time to time through our Website (e.g. our “Audio and Video Submission Agreement”), any official rules which apply to your participation in promotions, contests, sweepstakes, award programs, memberships, e-mail and/or newsletters ("Rules") and any additional terms and conditions referred to in any of the foregoing documents. These Terms of Use and our use of the term "Agreement" also includes our Privacy Policy. All of these are hereby incorporated into our Agreement with you by this reference and this Agreement will remain in full force and effect until terminated in accordance with paragraph 13 of this Agreement or as long as you are a User of THE SMOSH WEBSITE, even if your use of or participation in any particular service, feature, function or promotional activity terminates, expires, ceases, is suspended or deactivated for any reason.
The words "use" or "using" in this Agreement, means any time an individual (a "User"), directly or indirectly, with or without the aid of a machine or device, does or attempts to access, interact with, use, display, view, print or copy from THE SMOSH WEBSITE, transmit, receive or exchange data or communicate with THE SMOSH WEBSITE, or in any way utilizes, benefits, takes advantage of or interacts with any function, service or feature of THE SMOSH WEBSITE. This Agreement does not cover your rights or responsibilities with respect to third party content or any web sites or links that may direct your browser or your connection to third party web sites or web pages.
2. REGISTRATION
There are portions of our THE SMOSH WEBSITE that we make available to Users in the general public without registering and you may visit and browse those portions without charge or obligation; provided, however, we reserve the right to make changes, limit or restrict those portions at any time and from time to time in our discretion, without notice to you.
In order to access and use certain services, features or functions of THE SMOSH WEBSITE and in general any interactive feature of THE SMOSH WEBSITE, we require Users to register. As part of the registration process, you will need to select and provide us with a unique User name and choose a password (or we may assign an initial password which we will give you the option to change) which must form a unique combination (a "User ID"), and we also request that you provide your e-mail address, and may request that you provide other information as we may require. We may also, from time to time and at any time, provide Users with additional codes or passwords necessary to access and use certain services, features or functions of THE SMOSH WEBSITE. Please read our Privacy Policy, which describes the non-public, personally identifiable information ("Personal Information") we collect, use, disclose, manage and store. Your User ID is personal to you and you may not allow any other person to use your User ID under any circumstances. We are not liable for any harm caused or related to the theft or misappropriation or disclosure of all or any portion of your User ID, disclosure or your authorization of anyone else to use your User ID. You agree to immediately notify us if you become aware of or believe there is or may have been any unauthorized use of (or activity using) your User ID or any other need to deactivate your User ID due to security concerns.
3. MODIFICATIONS
We reserve the right, at any time and from time to time, for any reason in our sole discretion, to change the terms of this Agreement. We will post or display notices of material changes on THE SMOSH WEBSITE and we may also e-mail you about these changes. Once we post them on THE SMOSH WEBSITE, these changes become effective immediately and if you use THE SMOSH WEBSITE after they become effective it will signify your agreement to be bound by the changes. You should check back frequently and review the terms and conditions of this Agreement regularly so you are aware of the most current rights and obligations that apply to you and the terms and conditions of your agreement with us. SMOSH also reserves the right to change, modify, withdraw, suspend or even permanently discontinue all or any portions of THE SMOSH WEBSITE at any time, without any liability or obligation to you, with or without notice.
4. PRIVACY
SMOSH respects your privacy and the use and protection of your non-public and personally identifiable information (“Personal Information”). Please see our Privacy Policy for important information and disclosures relating to the collection and use of your Personal Information in connection with your use of THE SMOSH WEBSITE. If you have any questions regarding SMOSH’S Privacy Policy, you may send your question to us by e-mail to customerservice@smosh.com or by U.S. mail to SMOSH, Attention: VP, Programming, 525 Broadway, Ste. 240, Santa Monica, CA 90401.
5. THE SMOSH WEBSITE AND HYPERLINKS TO THE WEBSITES OF THIRD PARTIES
These Terms of Use apply to all Users of THE SMOSH WEBSITE, including Users who are also contributors of other materials or services on the Website. THE SMOSH WEBSITE may contain links to third party websites that are not owned or controlled by SMOSH. SMOSH has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites. The appearance, availability, or your use of URLs or hyperlinks referenced or included anywhere on THE SMOSH WEBSITE or any other form of link or re-direction of your connection to, with or through THE SMOSH WEBSITE, does not constitute an endorsement by, nor does it incur any obligation, responsibility or liability on the part of SMOSH, its partners, licensees, parents, subsidiaries, affiliates, assigns, related companies and successors and all of their respective offices, directors, employees, representatives, licensors, suppliers, service providers, successors and permitted assigns, attorneys and agents (collectively, “Affiliates”). We do not verify, endorse, or have any responsibility for, any such third party sites, their business practices, or any goods or services associated with or obtained in connection with any such site, whether SMOSH’S or any Affiliates' logo or sponsorship identification is on the third party site as part of a co-branding or promotional arrangement. If any third party site obtains or collects Personal Information from you, in no event shall we assume or have any responsibility or liability. Please read our Privacy Policy, which describes how SMOSH collects and uses your Personal Information and co-branding relationships. In addition, SMOSH will not and cannot censor or edit the content of any third-party site. By using the Website, you expressly relieve SMOSH from any and all liability arising from your use of any third-party website. Accordingly, we strongly suggest that when you leave THE SMOSH WEBSITE that you read the terms and conditions and privacy policy of each other website that you visit.
6. WEBSITE ACCESS
A. SMOSH hereby grants you permission to use THE SMOSH WEBSITE as set forth in these Terms of Use, provided that: (i) your use of THE SMOSH WEBSITE as permitted is solely for your personal, noncommercial use (unless SMOSH grants you written permission to do so); (ii) you will not copy or distribute any part of THE SMOSH WEBSITE in any medium without SMOSH’S prior written authorization; (iii) you will not alter or modify any part of THE SMOSH WEBSITE other than as may be reasonably necessary to use THE SMOSH WEBSITE for its intended purpose; and (iv) you will otherwise comply with the terms and conditions of these Terms of Use.
B. In order to access some features of THE SMOSH WEBSITE, you may have to create an account. You may never use another's account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify SMOSH immediately of any breach of security or unauthorized use of your account. Although SMOSH will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of SMOSH or others due to such unauthorized use.
C. You agree to abide by the “RULES OF CONDUCT” referenced in Section 10 below and not use or launch any automated system, including without limitation, "robots," "spiders," "offline readers," etc., that accesses THE SMOSH WEBSITE in a manner that sends more request messages to SMOSH servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, SMOSH grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. SMOSH reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from THE SMOSH WEBSITE, nor to use the communication systems provided by THE SMOSH WEBSITE for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any Users of THE SMOSH WEBSITE with respect to their Submissions (as defined below).
7. INTELLECTUAL PROPERTY RIGHTS
The content on THE SMOSH WEBSITE, except any and all User Submissions, including without limitation, the text, software, scripts, graphics, photos, sounds, products, music, videos, interactive features and the like ("Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to SMOSH, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on THE SMOSH WEBSITE is provided to you AS IS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. SMOSH reserves all rights not expressly granted in and to THE SMOSH WEBSITE and the Content. You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to circumvent, disable or otherwise interfere with security related features of THE SMOSH WEBSITE or features that prevent or restrict use or copying of any Content or enforce limitations on use of THE SMOSH WEBSITE or the Content therein. SMOSH may accept or consider unsolicited ideas such as ideas for new products, processes, new advertising campaigns, new promotional activities, marketing plans or new product names (“User Feedback”). Once submitted by you and received by SMOSH, all rights in and to such User Feedback shall be deemed to be assigned, transferred and conveyed by you to SMOSH and shall become the sole and exclusive property of and shall be credited to SMOSH in perpetuity. If you are not agreeable to the assignment, transfer and conveyance of all of your rights, title and interest in the User Feedback from you to SMOSH, do not submit any User Feedback to SMOSH.
8. USER SUBMISSIONS
A. THE SMOSH WEBSITE permits the submission of audio content, video content, text content and commentary or other communications, including blog posts and textual and/or video blogging submitted by you and other Users ("User Submissions") and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, SMOSH does not guarantee any confidentiality with respect to any submissions.
B. You shall be solely responsible for your own User Submissions, if any, and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize SMOSH to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by THE SMOSH WEBSITE and these Terms of Use; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by THE SMOSH WEBSITE and these Terms of Use. For purposes of clarity, understand that you retain all of your ownership rights in your User Submissions. However, by submitting the User Submissions to SMOSH, you hereby grant SMOSH a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with THE SMOSH WEBSITE and SMOSH's (and its successor's) business, including without limitation for promoting and redistributing part or all of THE SMOSH WEBSITE (and derivative works thereof) in and through all media formats and channels now known or hereafter developed. You also hereby grant each User of THE SMOSH WEBSITE a non-exclusive license to access your User Submissions through THE SMOSH WEBSITE, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of THE SMOSH WEBSITE and under these Terms of Use. Except where prohibited by law, by registering at THE SMOSH WEBSITE, you grant SMOSH and its Affiliates the universal and perpetual right and license to use, exploit, print, publish, reproduce, display, distribute and broadcast and to grant others the right and license to use, exploit, print, publish, reproduce, display, distribute and broadcast your name, actual or simulated likeness, photograph, image, voice, portrait, picture, personal characteristics, biographical information and other personal identification in any and all languages, formats, and media now known or hereafter developed, in connection with the operation of THE SMOSH WEBSITE and any and all related sweepstakes, advertising, promotion, marketing, and/or publicity thereof, including all ancillary and subsidiary rights therein, without additional consideration.
C. In connection with User Submissions, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant SMOSH all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage SMOSH or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive (in each case, “Offensive Material”), or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate (in each case, “Offensive Conduct”); (iv) post advertisements or solicitations of business; or (v) impersonate another person.
You understand that when using THE SMOSH WEBSITE, you will be exposed to User Submissions from a variety of sources, and that SMOSH is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. Further, SMOSH does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and SMOSH expressly disclaims any and all liability in connection with User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that contain Offensive Material and/or Offensive Conduct. In this regard, any User who uses THE SMOSH WEBSITE, hereby releases and forever discharges SMOSH and its officers, directors, shareholders, members, owners, operators, licensors, licensees, parents, affiliates, associates, subsidiaries, predecessors, successors, assigns, agents, employees, insurers, partners, trustees, beneficiaries, representatives, attorneys, and all persons acting by and through, under or in concert with it, including parent companies, divisions, subsidiaries and affiliates (collectively, the “Released Parties”), of and from any and all manner of action or actions, cause or causes of action, in law or in equity, judgments, suits, debts, liens, contracts, agreements, guaranties, promises, liabilities, claims, demands, damages, losses, costs or expenses (including without limitation attorneys’ fees and disbursements), whether known or unknown, suspected or unsuspected, arising out of or related to such User’s use of THE SMOSH WEBSITE, a User Submission, a Posting, alleged violations of any contracts, express or implied, any covenant of good faith and fair dealing, express or implied, any obligation for compensation, any Offensive Material, any Offensive Conduct or other objectionable statements, intentional or negligent infliction of emotional distress, retaliation, or any other tort, or any federal, state or other governmental statute, regulation, rule, ordinance or other legal or equitable rights or remedies you have or may have against SMOSH with respect thereto (individually and collectively, a “Claim”), and agree to indemnify and hold SMOSH and the Released Parties harmless to the fullest extent allowed by law regarding all Claims.
SMOSH does not permit copyright infringing activities or infringement of intellectual property rights on its THE SMOSH WEBSITE, and SMOSH will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights. SMOSH reserves the right to remove Content and User Submissions without prior notice. SMOSH will also terminate a User's access to its THE SMOSH WEBSITE, if that User is determined to be a repeat infringer. A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had a User Submission removed from THE SMOSH WEBSITE more than twice. SMOSH also reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms of Use for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. SMOSH may remove such User Submissions and/or terminate a User's access for uploading such material in violation of these Terms of Use at any time, without prior notice and at its sole discretion.
D. In particular, if you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the information listed below in writing (see 17 U.S.C 512(c)(3) for further detail). Note further, pursuant to Title 17, United States Code, Section 512(c)(2), all notifications of claimed copyright infringement on THE SMOSH WEBSITE should be sent ONLY to our Designated Agent.
NOTE: The following information is provided solely for notifying the service providers referenced below that your copyrighted material may have been infringed.
DO NOT SEND ANY INQUIRIES UNRELATED TO COPYRIGHT INFRINGEMENT (e.g., REQUESTS FOR TECHNICAL ASSISTANCE OR CUSTOMER SERVICE, REPORTS OR E-MAIL ABUSE, etc.) TO THE CONTACT LISTED BELOW. YOU WILL NOT RECEIVE A RESPONSE IF SENT TO THAT CONTACT.
WE CAUTION YOU THAT UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE CONTENT IS INFRINGING, YOU MAY BE SUBJECT TO HEAVY CIVIL PENALTIES. THESE INCLUDE MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS FEES INCURRED BY SMOSH, BY ANY COPYRIGHT OWNER, OR BY ANY COPYRIGHT OWNER'S LICENSEE THAT IS INJURED AS A RESULT OF OUR RELYING UPON YOUR MISREPRESENTATION. YOU MAY ALSO BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY.
Written notification must be submitted to the following Designated Agent:
Service Provider(s): SMOSH
Name of Agent Designated to Receive Notification of Claimed Infringement: Chris Kimbell
Full Address of Designated Agent to Which Notification Should Be Sent:
525 Broadway, Ste. 240, Santa Monica, California 90401
Telephone Number of Designated Agent: (310) 587-3535
Facsimile Number of Designated Agent: (310) 587-3533
E-mail Address of Designated Agent: copyrightagent@smosh.com
Under Title 17, United States Code, Section 512(c) (3) (A), the Notification of Claimed Infringement must include the following:
(1) An electronic or physical signature of the owner or of the person authorized to act on behalf of the owner of the copyright interest;
(2) Identification of the copyrighted work (or works) that you claim has been infringed;
(3) A description of the material that you claim is infringing, and the location where the original or an authorized copy of the copyrighted work exists (for example, the URL of the page of the website where it is lawfully posted; the name, edition and pages of a book from which an excerpt was copied, etc.);
(4) A clear description of where the infringing material is located on our website, including as applicable its URL, so that we can locate the material;
(5) Your name, address, telephone number, and e-mail address;
(6) A statement that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(7) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to SMOSH customer service. You acknowledge that if you fail to comply with all of the requirements of this Section 8(D), your DMCA notice may not be valid.
E. SMOSH permits you to link to materials on THE SMOSH WEBSITE for personal, non-commercial purposes only. SMOSH reserves the right to discontinue any aspect of THE SMOSH WEBSITE at any time.
9. WEB COMMUNITIES, FORUMS AND POSTINGS
THE SMOSH WEBSITE may now, or in the future, contain forum services, web communities, and other message and communication facilities ("Communities") that may provide you and other Users an opportunity to submit, upload, post, display, transmit and/or exchange information, ideas, opinions, information, files, messages, transmissions and Content with other Users and/or with us and these are referred to in this Agreement as a "Post" or "Posting."
SMOSH reserves the right at all times, but does not have the obligation, to edit, refuse to post, or to remove any Posting, in whole or part, that SMOSH deems inappropriate for inclusion in the Communities, for any reason or for no reason. Communities are public and not private and you should assume your Postings may be read by others, with or without your knowledge or permission. Although a particular Community may have a policy of limited membership or access, SMOSH shall have no liability if unauthorized persons nevertheless obtain access to the Community. Your use of the Communities is at your own risk and you should not disclose or make available your personal information in any Posting or in any Community.
You use the Communities solely at your own risk and SMOSH neither endorses nor controls User Postings available, delivered or displayed in the Communities and SMOSH assumes no duty to monitor or endorse Postings within the Communities, nor does SMOSH represent or guarantee the truthfulness, accuracy or reliability thereof or that any Posting complies with the terms or conditions of this Agreement and you should never rely upon any Posting as being true, accurate or reliable.
You understand, acknowledge and agree that Postings originating from any User ID are the sole responsibility of the individual associated with that User ID. This means that you, and not THE SMOSH WEBSITE, are entirely responsible for the consequences of all your Postings on the Communities or otherwise on THE SMOSH WEBSITE. Postings do not reflect the views of SMOSH or any Affiliates. In no event shall SMOSH or any Affiliates have or be construed to have any responsibility or liability for or in connection with any Posting whatsoever; provided, however, if we determine, in our sole discretion and judgment, that any Posting does or may violate any of the terms of this Agreement, we reserve the right, at any time and without limiting any and all other rights we may have under this Agreement, at law or in equity, to: (a) refuse to allow you to Post; (b) remove and delete Postings; (c) revoke your right to use the Communities and THE SMOSH WEBSITE; and/or (d) use any technological, legal, operational or other means available to us to enforce the provisions of this Agreement, including, without limitation, blocking specific IP addresses or deactivating your account on THE SMOSH WEBSITE and/or the Communities.
If a Posting originates from you or your User ID, you hereby agree that:
(a) you are placing the Posting in the public domain without reservation of any rights or further control over the Posting or its use and you specifically authorize THE SMOSH WEBSITE and Affiliates to use such Posting in whole or in part, throughout the universe, and you are automatically granting SMOSH and Affiliates a royalty-free, perpetual, irrevocable, unrestricted, unconditional, non-exclusive license to use, reproduce, modify, publish, edit, adapt, create derivative works from, translate, distribute, perform, display and otherwise exploit such Posting and all elements thereof alone or as part of other works in any form, media, or technology, whether now known or hereafter developed or discovered, and to license and sub-license such rights through multiple tiers of sub-licenses, all without any notification or obligation to you, of compensation, attribution or otherwise;
(b) you represent and warrant that (i) the Posting is original to you or fully cleared for use as contemplated herein, (ii) the Posting does and will not, in any way, violate or breach any of the terms of this Agreement, (iii) the Posting does not contain libelous, tortuous, or otherwise unlawful information, infringe or violate any copyright or other right, or contain any matter the publication or sale of which will violate any law, regulation or other governmental requirement or restriction, (iv) the Posting is not obscene or in any other manner unlawful, (v) the Posting shall not be damaging or injurious to SMOSH, any Affiliates or any User, and (vi) we shall not be required to pay or incur any sums to any person or entity as a result of our use or exploitation of the Posting;
(c) if your Posting incorporates the name, logo, brand, service or trademark, voice, likeness or image of any person, firm or enterprise, you specifically represent and warrant that you have the right to place such Posting in the public domain and grant SMOSH and Affiliates the right to use such Posting as described above; and
(d) we have the right to delete, re-format and/or change your Posting in any manner that we may determine (although you will not be responsible for any such changes made).
The amount of storage space on THE SMOSH WEBSITE per User is limited and some Postings may not be processed due to space constraints or outbound message limitations. You understand, acknowledge and agree we assume no responsibility for deletion of Postings or any failure to store, receive or deliver Postings in a timely manner or at all or as to any other matter relating to Postings. Posting is for noncommercial purposes only and you may not Post in any manner which does or is intended to promote or generate revenue for any business enterprise or commercial activity.
10. ADVERTISING
From time to time, you may communicate with, receive communications from, be re-directed to, interact with, or participate in or use the services or obtain goods and services of or from, third parties such as our advertisers, sponsors, or promotional partners ("Advertisers") as a result of or in connection with your use of THE SMOSH WEBSITE. All such communication, interaction and participation is strictly and solely between you and the Advertiser involved and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertiser or any goods or services you may purchase or obtain from any Advertiser).
11. PROMOTIONS
From time to time, SMOSH’S, the Affiliates', or THE SMOSH WEBSITE's service providers, suppliers, and Advertisers may conduct promotions on or through THE SMOSH WEBSITE, including, without limitation, auctions, contests and sweepstakes ("Promotions"). Each Promotion may have additional Rules which will be posted or otherwise made available to you and, for purposes of each Promotion, will be deemed incorporated into and form a part of this Agreement; provided, however, if there is any conflict between the Rules for any particular Promotion and these Terms of Use, the Rules shall govern for that Promotion.
12. RULES OF CONDUCT
Your use of THE SMOSH WEBSITE is subject to all applicable local, state, national laws and regulations and, in some cases, international treaties. You are solely responsible for all activities, acts and omissions that occur in, from, through or under your User ID or as a result of your use of the SMOSH website. You shall not use, allow, or enable others to use THE SMOSH WEBSITE, or knowingly condone use of THE SMOSH WEBSITE by others, in any manner that is, attempts to, or is likely to:

• be libelous, defamatory, indecent, vulgar or obscene, pornographic, sexually explicit, racially, culturally, or ethnically offensive, harmful, harassing, intimidating, threatening, hateful, objectionable, discriminatory, or abusive, or which may or may appear to impersonate anyone else;
• affect us adversely or reflect negatively on us, THE SMOSH WEBSITE, our goodwill, name or reputation or cause duress, distress or discomfort to us or anyone else, or discourage any person, firm or enterprise from using all or any portion, features or functions of THE SMOSH WEBSITE, or from advertising, linking or becoming a supplier to us in connection with THE SMOSH WEBSITE;
• send or result in the transmission of junk e-mail, chain letters, duplicative or unsolicited messages, or so-called "spamming" and "phishing";
• be used for commercial or business purposes, without the prior written consent of SMOSH, including, without limitation, advertising, marketing or offering goods or services, whether or not for financial or any other form of compensation or through linking with any other website or web pages;
• transmit, distribute or upload programs or material that contain malicious code, such as viruses, time bombs, cancel-bots, worms, Trojan horses, spyware, or other potentially harmful programs or other material or information;
• forge any TCP/IP packet header or part of the header information in any e-mail or newsgroup posting for any reason;
• violate any laws, regulations (including, without limitation, laws regarding the transmission of technical data or software exported from the United States), judicial or governmental order, any treaties or violate or infringe upon any intellectual property rights, rights of publicity or privacy, or any other rights of ours or of any other person, firm or enterprise;
• gain unauthorized access to THE SMOSH WEBSITE, other Users' accounts, names, User IDs, personally identifiable information or other computers, websites or pages, connected or linked to THE SMOSH WEBSITE or to use THE SMOSH WEBSITE in any manner which violates or is inconsistent with the terms and conditions of this Agreement;
• modify, disrupt, impair, alter or interfere with the use, features, functions, operation or maintenance of THE SMOSH WEBSITE or the rights or use and enjoyment of THE SMOSH WEBSITE by any other person, firm or enterprise; or
• collect, obtain, compile, gather, transmit, reproduce, delete, revise, view or display any material or information, whether personally identifiable or not, posted by or concerning any other person, firm or enterprise, in connection with their or your use of THE SMOSH WEBSITE, unless you have obtained the express, prior permission of such other person, firm or enterprise to do so.

13. TERMINATION OF YOUR ACCOUNT
You may terminate your account and User ID, if any, at any time and for any reason, by sending an e-mail to customerservice@smosh.com with your Username, password, and e-mail address and requesting termination of your account. We may terminate your use of and account on THE SMOSH WEBSITE, at any time and for any reason, with or without cause, without prior notice to you and without any liability or further obligation of any kind whatsoever to you or any other party.
14. WARRANTY DISCLAIMER
YOU AGREE THAT YOUR USE OF THE SMOSH WEBSITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, SMOSH, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SMOSH WEBSITE AND YOUR USE THEREOF. SMOSH MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF SMOSH WEBSITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THE SMOSH WEBSITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SMOSH WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SMOSH WEBSITE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SMOSH WEBSITE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SMOSH WEBSITE. SMOSH DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SMOSH WEBSITE OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND SMOSH WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
15. LIMITATION OF LIABILITY
IN NO EVENT SHALL SMOSH, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR OTHER PERSONS CONSTITUTING A RELEASED PARTY, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SMOSH WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
YOU SPECIFICALLY ACKNOWLEDGE THAT SMOSH SHALL NOT BE LIABLE FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY USER OR THIRD PARTY, OR ANY OFFENSIVE MATERIALS OR OFFENSIVE CONDUCT OF ANY USER OR THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
THE SMOSH WEBSITE is controlled and offered by SMOSH from its facilities in the United States of America. SMOSH makes no representations that THE SMOSH WEBSITE or its products and services are appropriate or available for use in other locations. Those who access or use THE SMOSH WEBSITE from other jurisdictions do so at their own volition and are responsible for compliance with local law.
15. LINKING TO THE SITE
Unless a user has a written agreement in effect with SMOSH which states otherwise, Users may only provide a hyperlink to SMOSH’s Websites on another website, if the User complies with all of the following: (a) the link must be a text-only link clearly marked either (i) “smosh.com” or “www.smosh.com” or (ii) “smosh.com” or “www.smosh.com” or ; (b) the link must "point" to the URL “http://www.smosh.com” and not to other pages within these websites; (c) the link, when activated by a User, must display the SMOSH Websites full-screen and not within a frame on the linking website; and (d) the appearance, position and other aspects of the link must not be such as to damage or dilute the goodwill associated with SMOSH and trademarks or create the false appearance that SMOSH is associated with or a sponsor of the linking website. SMOSH reserves the right to revoke its consent to any link at any time in its sole discretion.
16. INDEMNITY
You agree to defend, indemnify and hold harmless SMOSH and its Affiliates, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to THE SMOSH WEBSITE; (ii) your violation of any term of these Terms of Use; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; (iv) any Claims that User generated content caused damage to a third party. This defense and indemnification obligation will survive these Terms of Use and your use of THE SMOSH WEBSITE.
17. ASSIGNMENT
These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by SMOSH without restriction.
18. GENERAL
You agree that: (i) THE SMOSH WEBSITE shall be deemed solely based in California; and (ii) THE SMOSH WEBSITE shall be deemed a passive website that does not give rise to personal jurisdiction over SMOSH, either specific or general, in jurisdictions other than California. These Terms of Use shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and SMOSH that arises in whole or in part from THE SMOSH WEBSITE shall be decided exclusively by a court of competent jurisdiction located in the County of Los Angeles, California. These Terms of Use, together with the Privacy Policy and any other legal notices published by SMOSH on THE SMOSH WEBSITE, shall constitute the entire agreement between you and SMOSH concerning THE SMOSH WEBSITE. If any provision of these Terms of Use is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. No waiver of any term of this these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and SMOSH’S failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision. SMOSH reserves the right to amend these Terms of Use at any time and without notice, and it is your responsibility to review these Terms of Use for any changes. Your use of THE SMOSH WEBSITE following any amendment of these Terms of Use will signify your assent to and acceptance of its revised terms.
Effective Date: February 1, 2009