1. Your SMinfinity.com Account. You are fully responsible for all activities that occur under the account and any other actions taken in connection with the account. You must not display sign content (“Content”) that is misleading or unlawful, including in a manner intended to trade on the name or reputation of others, and Spectacular Media may change or remove any Content that it considers inappropriate or unlawful, or otherwise likely to cause Spectacular Media liability. You must immediately notify Spectacular Media of any unauthorized uses of your account or any other breaches of security. Spectacular Media will not be liable for any acts or omissions by You, including any damages of any kind incurred as a result of such acts or omissions.
2. Responsibility of Account Holders. You are entirely responsible for the content of, and any harm resulting from, Content displayed on the signs associated with your account. That is the case regardless of whether the Content in question constitutes text, graphics, or animation. By uploading to the media library and/or displaying Content, you represent and warrant that:
- The use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;
- if your employer has rights to intellectual property you create, you have either (i) received permission from your employer to post or make available the Content, or (ii) secured from your employer a waiver as to all rights in or to the Content;
- you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;
- the Content is not pornographic, does not contain threats or incite violence towards individuals or entities, and does not violate the privacy or publicity rights of any third party;
3. By submitting Content to Spectacular Media through the SM Infinity portal for display on your sign(s) and/or storage in the media library, you grant Spectacular Media a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying the Content on the sign(s). If you delete Content, Spectacular Media will remove it from the SM Infinity servers, but you acknowledge that caching or references to the Content may not be made immediately unavailable.
4. Without limiting any of those representations or warranties, Spectacular Media has the right (though not the obligation) to, in Spectacular Media’s sole discretion (i) refuse or remove any content that, in Spectacular Media’s reasonable opinion, violates any Spectacular Media policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in Spectacular Media’s sole discretion. Spectacular Media will have no obligation to provide a refund of any amounts previously paid.
5. Payment and Renewal.
- General Terms. By enrolling in the SM Infinity service and agreeing to these terms and conditions, you agree to pay Spectacular Media the monthly or annual subscription fees indicated for that service. Payments will be charged on a pre-pay basis on the day your account is set up in the system and will cover the use of that service for a monthly or annual subscription period as indicated. These fees are not refundable.
- Additional Charges. You also agree to pay Spectacular Media for any additional fees or purchases made through the SM Infinity website, including but not limited to cancellation fees, setup fees, and additional “Points” purchased for animations or images. These fees and purchases are not refundable.
- Automatic Renewal. Unless you notify Spectacular Media before the end of the applicable subscription period that you want to cancel the service, your subscription will automatically renew and you authorize us to collect the then-applicable annual or monthly subscription fee for such service (as well as any taxes) using any credit card or other payment mechanism we or our billing partners have on record for you.
- Support. The SM Infinity Services include access to basic phone and email support for the SM Infinity product only and does not include support for sign hardware or third party software. “Email support” means the ability to make requests for technical support assistance by email at any time (with reasonable efforts by Spectacular Media to respond within one business day) concerning the use of the SM Infinity service.
6. SM Infinity Website. Spectacular Media has not reviewed, and cannot review, all of the material, uploaded to the media library or displayed on the sign(s), and cannot therefore be responsible for that material’s content, use or effects. By operating the SM Infinity website, Spectacular Media does not represent or imply that it endorses the material displayed on sign(s), or that it believes such material to be accurate, useful or non-harmful. The Website may contain content containing technical inaccuracies, typographical mistakes, and other errors. Spectacular Media disclaims any responsibility for any harm resulting from the use by visitors or account holders of the Website.
7. Copyright Infringement Policy. As Spectacular Media asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by SMinfinity.com or the SM Infinity Service violates your copyright, you are encouraged to notify Spectacular Media as soon as possible. Spectacular Media will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. Spectacular Media will terminate an account holders access to and use of the Website if, under appropriate circumstances, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of Spectacular Media or others. In the case of such termination, Spectacular Media will have no obligation to provide a refund of any amounts previously paid to Spectacular Media.
8. Intellectual Property. This Agreement does not transfer from Spectacular Media to you any Spectacular Media or third party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with Spectacular Media. Spectacular Media, SM Infinity, SMinfinity.com, the SMinfinity.com logo, and all other trademarks, service marks, graphics and logos used in connection with SMinfinity.com, or the Website are trademarks or registered trademarks of Spectacular Media or Spectacular Media’s licensors. Other trademarks, service marks, graphics and logos used in connection with the Website may be the trademarks of other third parties. Your use of the Website grants you no right or license to reproduce or otherwise use any Spectacular Media or third-party trademarks.
9. Advertisements and Public Service Messages. Unless you have purchased an Ad-Free Package, Spectacular Media reserves the right to display lawful, reasonable, and appropriate advertisements and Public Service Messages on your sign(s) through the SM Infinity Portal according to the terms and conditions on the SM Infinity enrollment form.
10. Changes. Spectacular Media reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Website following the posting of any changes to this Agreement constitutes acceptance of those changes. Spectacular Media may also, in the future, offer new services and/or features through the Website (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.
11. Termination and Cancellation. Spectacular Media may terminate your access to all or any part of the Website at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your SMinfinity.com account, you may simply cancel your account and discontinue using the Website. Cancellation of the SM Infinity service requires written notice, and may take up to 1 billing cycle to take effect. A cancellation fee as noted on the enrollment form will be charged at the end of the billing cycle when the cancellation notice is confirmed. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
12. Disclaimer of Warranties. The Website and Services are provided “as is”. Spectacular Media and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Spectacular Media nor its suppliers and licensors, makes any warranty that the Website will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, upload to, or otherwise obtain content or services through, the Website at your own discretion and risk.
13. Limitation of Liability. In no event will Spectacular Media, or its suppliers or licensors, be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to Spectacular Media under this agreement during the twelve (12) month period prior to the cause of action. The customer agrees to be ultimately responsible for the media content displayed on the LED Sign(s). Spectacular Media will not be held responsible for mistakes or incorrect content approved by the customer through the SM Infinity service or custom content uploaded by the customer to the SM Infinity library. Spectacular Media shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
14. General Representation and Warranty. You represent and warrant that (i) your use of the Website will be in strict accordance with, this Agreement and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable sign content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside) and (ii) your use of the Website will not infringe or misappropriate the intellectual property rights of any third party.
15. Indemnification. You agree to indemnify and hold harmless Spectacular Media, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorney’s fees, arising out of your use of the Website, including but not limited to your violation of this Agreement.
16. Miscellaneous. This Agreement constitutes the entire agreement between Spectacular Media and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Spectacular Media, or by the posting by Spectacular Media of a revised version. Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Website will be governed by the laws of the state of California, U.S.A., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Riverside County, California. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Riverside County, California, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorney’s fees. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the partie’s original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; Spectacular Media may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.
17. Revisions: Terms and Conditions effective as of 11/16/12.