WEBSITE TERMS AND CONDITIONS OF USE

This Website Terms and Conditions of Use Agreement (“Agreement”) governs the use of this Internet website for users (“you” or “your”), as well as use of any related websites that link to this Agreement, and further as well as any related applications, mobile platforms, services, tools, modules, remote services and/or servers (collectively, the “Website”) that are operated by, under the control of, or otherwise for the direct benefit of Smith and Warren (“Smith & Warren” or “us”, “our” or “we”).

Please read this Agreement carefully as it is binding between you and Smith & Warren, and is subject to change without notice, at our sole discretion.  Please refer to https://www.smithwarren.com/terms for updates to this Agreement, which will be posted from time to time.

By accessing the Website, you hereby agree to be bound by all terms and conditions set forth in this Agreement. If you do not agree and/or do not comply with any of the terms and conditions set forth herein, you are not permitted to access the Website, nor to use any of the content provided on the Website.

1. GENERAL INFORMATION

Subject to this Agreement, Smith & Warren permits all users with access to and use of portions of the Website including, but not limited to, product customization and development tools, reports, articles, and various forms of media.  Some features or functionality of the Website, however, may be restricted to registered users and/or clients of Smith & Warren. For more information about registration, please see the Account Registration section of this Agreement.  Smith & Warren reserves the right to suspend access to any or all parts of the Website at any time without notice.

2. AGE RESTRICTION

The Website is not intended for children under the age of 13 and no person under the age of 13 may use the Website.

3. WEBSITE CONTENT OWNERSHIP

The Website includes content (“Website Content”) such as product customization and development tools and any designs generated using the same, current product lists and designs, dealership lists and other media, provided by Smith & Warren and/or one or more third-party partners.  In addition, the Website Content may include various forms of intellectual property, including trademarks, designs, logos, URLs, domain names, text, pages, print screens, images, artwork, photographs, audio and video clips, and HTML code, source code, program code or software. 

You agree and acknowledge that the Website Content is owned by Smith & Warren and/or its licensors, and that your use of the Website does not grant you any rights, including ownership or use outside of the Website, in the Website Content.  

4. INTELLECTUAL PROPERTY

Except where expressly stated otherwise, the Website and the Website Content are protected by applicable intellectual property law, including copyrights, trademarks, patents, trade secrets, or other proprietary rights and laws.

Solely as permitted by this Agreement, Smith & Warren grants to you a limited, revocable, conditional, no-cost, non-exclusive, non-transferable, non-sub-licensable license to view or interact with the Website and Website Content. This license granted to you is expressly conditioned on your preexisting agreement to comply with, and your actual compliance with, each of the provisions this Agreement, and exists only so long as you strictly agree and comply with the terms and conditions in this Agreement.  Such terms and conditions include, but are not limited to, your agreement to refrain from engaging in any of the Prohibited Actions, as defined herein.  

Any use of the Website or Website Content by you, or anyone acting on your behalf, that engages in any of the Prohibited Actions violates and/or exceeds the scope of the license granted to you herein, and may constitute unauthorized use, reproduction, display, or creation of unauthorized derivative versions of the Website and Website Content, which infringes legal rights of Smith & Warren and/or its partners.

Engaging in any of the Prohibited Actions may constitute copyright infringement or another violation of Smith & Warren intellectual property rights.  Smith & Warren may bring legal action against such conduct, including but not limited to, seeking injunctions to stop the use or distribution of Smith & Warren intellectual property and, if necessary, monetary damages (including court costs).

In the event that you engage in any of the Prohibited Actions, you acknowledge that the monetary damages which Smith & Warren will sustain may be difficult to ascertain. You therefore agree that in the event you engage in any of the Prohibited Actions that you will be liable to Smith & Warren for liquidated damages in the amount of $25,000.00 per Prohibited Action. You hereby acknowledge that said damages are reasonable, do not constitute a penalty, and further agree that you will not contest the reasonableness of said liquidated damages in any such action commenced by either party with respect to this Agreement.

5. SUBMISSIONS

Smith & Warren appreciates hearing from the community and welcomes your comments. If you do submit comments, you should be aware that our policies do not permit us to accept or consider creative ideas, suggestions, inventions or materials other than those that Smith & Warren have specifically requested.  You agree that Smith & Warren is under no obligation to maintain the confidentiality or secrecy of any submitted comments and may, at its sole discretion, disclose any submitted comments to third parties. 

Further, Smith & Warren shall not be liable for any use or disclosure of any comments that you provide and Smith & Warren shall be entitled to unrestricted use of any comments provided via the Website for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person who submitted the information.

6. GEOGRAPHIC SCOPE

The Website is directed to people residing in the United States and its territories. Smith & Warren does not represent that any Website Content available on or through the Website is appropriate or available in other locations. If you choose to access the Website from outside the United States, you do so at your own risk, and Smith & Warren shall not be liable for any use or access of the Website from outside the United States.

7. PRIVACY

Smith & Warren cares about your privacy.  You acknowledge that you have read the Privacy Policy linked here [https://www.smithwarren.com/privacy].  As with this Agreement, the Privacy Policy is subject to change without notice, at our sole discretion.  Please refer the Privacy Policy regularly for updates, which will be posted from time to time.

8. DISCLAIMER

Smith & Warren takes pride in its work, and the information published on the Website is believed to be accurate and reliable.  The Website does not make any claim to sponsorship, endorsement or approval by any federal, state, or local governmental agency.  Smith & Warren makes does not warrant or make any representation as to the appropriateness of its products for any particular purpose and any reliance upon the Website is done at your own risk. 

9. PROHIBITED ACTIONS

Your authorization to access and utilize the Website is revoked automatically and immediately upon you, or a third-party acting on your behalf, undertaking, or attempting to undertake, any of the following prohibited actions (“Prohibited Actions”):

• copying any portion of the Website Content and transferring the same to a third party without express written authorization;
• Using content from the website, including generated images, to advertise products manufactured by others;
• using the Website or Website Content for any purpose that is unlawful in any applicable jurisdiction in the U.S. or that is prohibited by the terms of this Agreement;
• using the Website or Website Content for any purpose other than for personal, non-commercial use;
• copying, reproducing, duplicating, exploiting, modifying, adapting, translating or creating derivative works based upon any portion of the or any portion of the Website;
• selling, trading, or distributing the Website or Website Content;
• encouraging or permitting others to manufacture goods based on the Website Content;
• modifying the Website in any manner or form, or using modified versions of the Website, for any reason including without limitation to obtain unauthorized access to the Website;
• Interfering with, damage, impair, or disable the operation of the Website by any means;
• disseminating or transmitting viruses, worms, Trojan horses, RATs, keyboard loggers, time bombs, spyware, adware, cancelbots, passive collection mechanisms (“PCMs”), or any other malicious or invasive code or program or uploading or transmitting any material that acts as a passive or active information collection or transmission mechanism, including, without limitation, clear graphics interchange formats (“gifs”), 1x1 pixels, web bugs, cookies or other similar devices;
• removing, circumventing, disabling, damaging or otherwise interfering with any security-related features of the Website, features that prevent or restrict the use or copying of any content accessible through the Website, or features that enforce limitations on the use of the Website or Website Content;
• gaining unauthorized access to the Website, other accounts, computer systems or networks connected to the Website, through hacking, password mining or any other means;
• interfering with the proper working of the Website or any activities conducted on the Website;
• obtaining any materials or information through any means not intentionally made available through the Website;
• using any automated means to access the Website for any purpose without the express written consent, or bypass robot exclusion headers or other measures used to prevent or restrict access to the Website;
• using any names, logos, graphics, or trademarks in any manner, including without limitation through framing techniques, meta tags, or “hidden text”, without express written consent;
• removing, altering, or obscuring any trademarks, copyright, or any intellectual property or proprietary rights notices from any Website, including any copy thereof;
• reverse engineering, decompiling, disassembling, or otherwise attempting to discover the source code of any Website or any part thereof, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation;
• posting or transmitting to us materials that are or may be: (a) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (b) defamatory, libelous, fraudulent or otherwise tortious; (c) obscene, indecent, pornographic, “spam” or otherwise objectionable; and/or
• contacting us using a false email address or otherwise attempt to mislead us as to the origin of any communication.

10. LINKS

The Website may contain links that provide access to another third-party website, including but not limited to vendor websites and social media pages, that may not be owned or operated by us (“linked third-party website”). The fact that Smith & Warren may link to a third-party website, or maintains a presence on such third-party platforms, does not indicate or represent any approval or endorsement of such third-party website. Smith & Warren has no control over a linked third-party website, and is not responsible for the content of such linked third-party websites, including the corresponding privacy practices of the linked third-party website, if any.

Smith & Warren strongly encourages you to become familiar with the terms of use and practices of any linked third-party website. Your use of a third-party website is solely at your own risk and is subject to the terms of such third-party website. It is up to you to take precautions to ensure that whatever links you select or software you download (whether from the third-party website) is free of viruses, worms, Trojan horses, defects, date bombs, time bombs and other items of a destructive nature.

11. TERMINATION

Smith & Warren reserves the right, in its sole discretion and for any or no reason, to terminate your access to the Website at any time, with or without notice, without liability to you or any third party.

Furthermore, you acknowledge that any attempt to access the Website subsequent to: (1) a notification of a violation of the terms of this Agreement; or (2) a termination of access; or (3) engaging in Prohibited Actions may constitute unauthorized access under 18 U.S.C § 1030 (Computer Fraud and Abuse Act).

You agree that your failure to abide by the terms of this Agreement may cause irreparable harm to Smith & Warren, for which harm cannot be adequately compensated for by money damages. It is further agreed by you that an order of specific performance or for injunctive relief against you in the event of a breach or default under the terms would be equitable and would not work a hardship on you, your business interests or activities. Accordingly, in the event of a breach or default by you of any term provided hereunder, Smith & Warren may, without any bond or other security being required and in addition to whatever other remedies are or might be available at law or in equity, shall have the right either to compel specific performance by, or to obtain injunctive relief against you, with respect to any obligation or duty herein or breach thereof.

12. NO WARRANTIES

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SMITH & WARREN DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SMITH & WARREN OR THROUGH THE WEBSITE CREATES ANY WARRANTY NOT EXPRESSLY STATED HEREIN. THIS DISCLAIMER EXTENDS TO OUR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUPPLIERS, LICENSORS, AFFILIATES AND SUBCONTRACTORS. THE USE OF THE WEBSITE, AND ANY GOODS OR SERVICES OBTAINED THROUGH THE WEBSITE, IS AT YOUR OWN RISK. THE WEBSITE AND ANY THIRD-PARTY MEDIA, CONTENT, SOFTWARE, GOODS, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.

SMITH & WARREN AND ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT REPRESENT OR WARRANT (A) THAT THE MATERIALS, SERVICES, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE WEBSITE WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY OF THE FOREGOING WILL BE CORRECTED; (B) THE USE OR THE RESULTS OF THE USE OF THE WEBSITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE; OR (C) THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. YOU USE, ACCESS, OR OTHERWISE OBTAIN INFORMATION, MATERIALS OR DATA THROUGH THE WEBSITE AT YOUR OWN DISCRETION AND RISK AND ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM AND MOBILE DEVICE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

13. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SMITH & WARREN , OR ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE THE WEBSITE, ANY THIRD PARTY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER THIRD PARTY WEBSITES, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.

14. INDEMNIFICATION

If anyone brings a claim against us related to your use of the Website, or your violation of the terms of this Agreement, you agree to indemnify, defend and hold Smith & Warren and its affiliated companies, and each of its officers, directors, employees, and agents, harmless from and against any and all claims, damages, losses and expenses of any kind (including reasonable legal fees and costs). Smith & Warren reserves the right to take exclusive control and defense of any claim, and you will cooperate fully with Smith & Warren in asserting any available defense.

15. DIGITAL MILLENNIUM COPYRIGHT ACT ENFORCEMENT (DMCA)

If you believe any materials accessible on or from the Website infringe your copyright, you may request removal of those materials (or access thereto) from this website by contacting Smith & Warren’s copyright agent (identified below) and providing the following information:

• Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
• Identification of the material that you believe to be infringing and its location. Please describe the material and provide Smith & Warren with its URL or any other pertinent information that will allow Smith & Warren to locate the material.
• Your name, address, telephone number and (if available) e-mail address.
• A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
• A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf.
• A signature or the electronic equivalent from the copyright holder or authorized representative.

Smith & Warren's agent for copyright issues relating to the Website is as follows:

Smith & Warren,

Attn: Copyright Notice

127 Oakley Avenue

White Plains, NY 10601

Contact@smithwarren.com

16. PARTIAL INVALIDITY

If any provisions or terms of this Agreement are held to be invalid or declared such under any law, regulation or following a final decision of a competent jurisdiction, such provision shall nonetheless be enforced to the fullest extent permitted and the other provisions shall remain in full force and scope.

17. APPLICABLE LAW AND JURISDICTION

Any claim relating to your use of the Website shall be filed in a federal or state court located within Westchester County, New York, and you consent to the jurisdiction of those courts for such purposes.

18. CONTACT

If you have any questions about this Agreement, please do not hesitate to contact us at contact@smithwarren.com.

19. LAST UPDATE

These Terms & Conditions were last updated on April 1, 2020.