SmartMouth OnDemand Terms of Use

These Terms of Use (these “Terms”) are a binding agreement between you and SmartMouth OnDemand, LLC (“OnDemand”). Please review these Terms carefully before using the OnDemand website (the “Site”) and all related applications, software, and services (together, and collectively with the Site, the “Service”). By using the Service in any way, including, but not limited to visiting or browsing the Site, you agree to be bound by these Terms without modification.

1. CONTENT

1.1. Content. For purposes of these Terms, “Content” includes, without limitation, any tools, services, advertisements, advice, suggestions, videos, audio clips, written comments, information, data, text, photographs, software, scripts, graphics, interactive features, and any other media generated, provided, or otherwise made accessible by OnDemand, its content providers or other partners, or other Users through the Service. Content includes all User Submissions, as defined in Section 2.2 below.

1.2. Ownership of Materials. Content is provided by OnDemand unless indicated otherwise. With the exception of User Submissions, all Content is the property of OnDemand and is protected by federal and international intellectual property laws and treaty provisions. You must abide by all intellectual property notices, information, and restrictions contained in any such Content. You may not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, display in frames, link to, or otherwise commercially exploit any Content or User Submissions (i) without the express written consent of the respective owners, and (ii) in any way that violates the rights of any third party.

1.3. Trademarks. “SmartMouth,” “Speechbuilder,” and other trademarks used on connection with the Service are trademarks of OnDemand.

1.4. Use License. Unauthorized use of Content or information made available through the Service may violate patent, copyright, trademark, and other laws. Your use of the Service and Content is pursuant to a limited-use license (“License”), not a transfer of title, and is subject to the following restrictions:

(a) You may not modify Content or use it for commercial purposes or for public display, performance, sale or rental;

(b) You may not decompile, reverse engineer, disassemble or make derivative works of Content;

(d) You may not transfer Content to another person or entity in manners inconsistent with these Terms and other OnDemand policies.

(e) You may not facilitate or permit unauthorized copying of Content or information made available by the Service.

1.5. Termination of this Use License. OnDemand may terminate your License at any time if you breach these Terms. You agree that upon termination of your License you will immediately (1) stop using the Service, and (2) destroy all Content in your possession, if any, other than any User Submissions submitted by you.

1.6. Registration as a Condition to Use. Only registered members of OnDemand (each, a “User”) may use the Service. As a User, you may not allow third parties to access the Service using your account. You are personally responsible for any use of the Service through your account, whether by you or a third party.

2. USER SUBMISSIONS AND USER INFORMATION

2.1. Privacy Policy. Our use of Personal Information is governed by our Privacy Policy, which is hereby incorporated into these Terms. By using the Service, you warrant that you have read and agree to our Privacy Policy. For purposes of these Terms, “Personal Information” means information that can or potentially can be used on its own or with other information to de-anonymize data or to identify, contact, or locate a single person.

2.2. User Submissions. The Service may allow you to upload, submit, disclose, distribute or otherwise post (referred to collective hereafter as “posting”) multimedia content, including video, audio, text, data, photographs, software, scripts, graphics, works of authorship or other information (collectively referred to as “User Submissions”). You own all rights, title and interests in and to all User Submissions you provide. User Submissions are non-confidential and are the property of the originating User. By posting User Submissions through the Service, you agree to the following:

(a) You grant OnDemand a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sub-licensable and transferable license to use, modify, reproduce, distribute, prepare derivative works of, display, publish, perform, and otherwise fully exploit (hereinafter “use”) your User Submissions in connection with the Service and any business of OnDemand and its successors and assigns. You also grant each User of the Service a non-exclusive license to access your User Submissions through the Service, and to use such User Submissions as permitted by the functionality of the Site and the Service and in accordance with these Terms.

(b) You represent and warrant that you own or otherwise control all rights necessary to post your User Submissions and that disclosure and use of such User Submissions by OnDemand (including without limitation, publishing content on the Site) will not infringe or violate the rights of any third party.

(c) You understand (1) that OnDemand has the right to reformat, excerpt, or translate your User Submissions or any portion thereof; (2) that all information publicly posted or privately transmitted through the Service is the sole responsibility of the person from which such content originated; and (3) that OnDemand cannot guarantee the identity of Users with whom you interact while using the Service or the authenticity of any data posted by such Users.

(d) You warrant that your User Submissions do not and will not contain the Personal Information of any third party.

(e) You warrant that your User Submissions do not contain misleading, false, or inappropriate language or statements.

OnDemand does not endorse any User Submissions. OnDemand has the right, but not the obligation, to monitor the Site, Service, Content, and User Submissions. OnDemand may remove any User Submission at any time, for any reason or for no reason at all. OnDemand will consider requests to remove User Submissions on a case-by-case basis upon request by the originating User.

2.3. Personal Profile. If you create a personal profile through which you provide additional information about your credentials, background, and more, your personal profile will be available for other Users to view and will be considered non-confidential and non-proprietary. Creation of a personal profile is not required for registration, and you may alter or remove your personal profile at any time.

3. ONDEMAND CODE OF CONDUCT

You promise not to use the Service for any purpose that is prohibited by law, by these Terms, or by any other terms of use that OnDemand has or will put in effect. You alone are responsible for all of your activity in connection with the Service.

3.1. Posting Policy. You may not upload, post, submit or otherwise distribute or facilitate distribution of any improper or unlawful Content or communications on or through the Service, including but not limited to Content that does any of the following:

(a) violates local, state, national, or international laws or regulations;

(b) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any third party;

(c) is unlawful, threatening, abusive, harassing, pornographic, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane;

(d) constitutes unauthorized or unsolicited advertising, junk email or bulk email (i.e., “spamming”);

(e) involves sales or commercial activities not expressly authorized by OnDemand (e.g., contests, sweepstakes, barter, advertising, or pyramid schemes);

(f) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of OnDemand or any third party;

(g) violates the privacy other Users or that of any third party; or

(h) impersonates any person or entity, including, but not limited to, OnDemand or any employee or representative thereof.

3.2. Use of Infrastructure. You may not: (i) take any action that imposes or may impose an unreasonable or disproportionately large load on the infrastructure of OnDemand or its third party providers (as determined by OnDemand in its sole discretion); (ii) interfere or attempt to interfere with the proper working of the Site or Service or any activities conducted thereon; (iii) bypass any measures OnDemand may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); (iv) run Maillist, Listserv, any form of auto-responder or “spam” on the Service; or (v) use manual or automated software, devices, or other processes to “crawl” or scrape date from the Service.

3.3. Conflicts of Interest. You may not use the Service as a paid consultant or in furtherance of any financial interest in the information you provide through the Service, including, but not limited to, the promotion of commercial goods or services.

3.4. Other restrictions. You may not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service, except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Service, or (iii) copy, rent, lease, distribute, or otherwise transfer any or all of the rights that you receive hereunder.

4. LINKS TO EXTERNAL RESOURCES

The Service may provide links or permit you and other Users to link to other websites or resources on the Internet. These other websites or resources are not under OnDemand’s control, and OnDemand is not responsible for the content, functions, accuracy, legality, appropriateness or any other aspect of such website or resources, or for any damage or loss caused or alleged to be caused by your use of or reliance on any information, goods or services available through any such website or resource. When you access a third party website or resource, you do so at your own risk. The inclusion of a link to any website or resource does not imply endorsement by or affiliation with OnDemand. OnDemand reserves the right to disable or remove any link for any reason or for no reason at all.

5. WARRANTIES, DISCLAIMERS, AND LIABILITY

5.1. General Disclaimers. OnDemand has no fiduciary duty to you. You acknowledge that OnDemand has limited control over who gains access to the Service; what Content you access via the Service; what effects Content may have on you; how you may interpret or use Content; or what actions you may take as a result of having been exposed to Content. You alone are responsible for your use of the Service and the consequences thereof.

OnDemand provides the Service (including, without limitation, the Site and Content) “as is” without warranty of any kind, express or implied. To the fullest extent permitted by law, OnDemand hereby disclaims all warranties, express, implied, statutory or otherwise, whether oral or written, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. Without limiting the foregoing, OnDemand and its directors, employees, agents, suppliers, partners and content providers do not warrant that: (a) the Site will be secure or available at any particular time or location; (b) any defects or errors can or will be corrected; (c) any Content or software available at or through the service is free of viruses or other harmful components; or (d) the results of using the Service will meet your requirements. Your use of the Site and Service is solely at your own risk.

5.2. Limitation of liability. If, notwithstanding the other provisions of these Terms, OnDemand should have any liability to you or any third party for any loss, harm or damage, you and OnDemand agree that such liability will under no circumstances exceed $50.00. You and OnDemand agree that the foregoing limitation of liability is an agreed allocation of risk between you and OnDemand. You acknowledge that absent your agreement to this limitation of liability, OnDemand would not provide the Service to you.

5.3. Indemnification. You agree to defend, indemnify, and hold harmless OnDemand, its affiliates, employees, officers, agents, managers, members and successors and assigns from all damages and liability including, without limitation, reasonable attorneys’ fees, incurred as a result of (i) your breach of these Terms, (ii) your unauthorized or unlawful use of the Service, or (iii) the unauthorized or unlawful use of the Service by any person using your account.

6. MISCELLANEOUS PROVISIONS

6.1. Notice. OnDemand may give notice required or permitted to be given hereunder via email or a post on the Site and will be effective immediately.

6.2. Entire Agreement; Amendment. These Terms and any documents incorporated herein constitute the entire agreement between you and OnDemand with respect to the subject matter hereof. OnDemand reserves the right to amend the provisions of these Terms at any time, provided that OnDemand will notify you of any such amendment by email or by notice posted on the Site.

6.3. Governing Law; Venue. These Terms will be governed and construed under the laws of the State of Utah, without regard to its conflict of laws provisions or the United Nations Convention on the International Sale of Goods. The parties irrevocably consent to the exclusive jurisdiction of the state and federal courts located in the Salt Lake County, Utah. All disputes and/or legal proceedings related to these Terms will be maintained in courts located in Salt Lake County, Utah.

6.4. Waiver/Severability. The waiver or failure of OnDemand to exercise any right in any respect provided for herein will not be deemed a waiver of any further right hereunder. If any provision of these Terms is determined to be invalid or unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of these Terms will remain enforceable.

6.5. Assignment. OnDemand may assign these Terms, in whole or in part, in its sole discretion. You may not assign your rights under these Terms without OnDemand’s prior written permission. Any attempt to assign your rights under these Terms without OnDemand’s permission will be void.

6.6. Force Majeure. OnDemand will not be liable for any failure or unavailability of the Site and/or the Content or failure by OnDemand to provide the Service as a result of strikes, lockouts, calamities, acts of God, unavailability of suppliers, the loss or destruction of data, the deletion or corruption of storage media, power failures, natural phenomena, riots, acts of vandalism, acts or omissions of civil or military authority, war, terrorism or any other event beyond OnDemand’s control.

6.7. Headings. The headings of articles and sections contained in these Terms are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.

6.8. Injunctive Relief. You acknowledge and agree that the breach by you of any covenant or obligation under these Terms will cause OnDemand substantial, immediate and irreparable harm, or that the extent of damages caused by any violation of these Terms would be impossible to ascertain, and that there is no adequate remedy at law in the event of such breach. Accordingly, you agree that OnDemand shall be entitled to injunctive relief, without prejudice to any other right OnDemand may have in law or equity, by bringing an appropriate action for such remedy in any court of competent jurisdiction which OnDemand, in its sole discretion, deems appropriate.