Smore Terms of Service

Updated November 21, 2016

The Gist

We (the folks at Fireplace) run an online marketing and flyer hosting service called Smore and would love for you to use it. Our basic service is free, and we offer paid upgrades for advanced features such as domain hosting and custom backgrounds. Our service is designed to give you as much control and ownership over what goes on your flyers as possible and encourage you to express yourself freely. However, be responsible in what you publish. In particular, make sure that none of the prohibited items listed below appear on your site or get linked to from your site (things like spam, viruses, or hate content).


If you find a Smore flyer that you believe violates our terms of service, please let us know.


(Note, this document is a modification of Wordpress.com's excellent Terms of Service, which are available under Creative Commons Sharealike license. This means you’re more than welcome to repurpose it for your own use, just make sure to replace references to us with ones to you).

Terms of Service

Introduction

The following terms and conditions govern all use of the Smore website and all content, services and products available at or through the website, hereby called "The Website". The Website is owned and operated by Fireplace, Inc. (”Fireplace”). The Website is offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, Smore's Privacy Policy) and procedures that may be published from time to time on this Site by Fireplace (collectively, the “Agreement”).


Please read this Agreement carefully before accessing or using the Website. By accessing or using any part of the web site, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this agreement, then you must not access the Website or use the services. If these terms and conditions are considered an offer by Fireplace, acceptance is expressly limited to these terms. The Website is available only to individuals who are at least 13 years old. If you are accepting these Terms and using the Website on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so.

1. Your Smore Account and Flyers

If you create a flyer on the Website, you are responsible for maintaining the security and privacy of your account and flyers, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the flyers. You must keep your individual account and login credentials and passwords confidential and not authorize anyone else to use the Website on your and/or their behalf. You must immediately notify Fireplace of any unauthorized uses of your flyers, your account or any other breaches of security. Fireplace 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.


By sharing any of your content, both publicly or in private and including but not limited to by email, social media, or the Mailing list feature, You agree to and accept responsibility of the content being shared and will NOT use or send any inappropriate messages, content, or anything considered “spam” as defined below. By Your use of the Mailing list feature through the Website you agree to the email sending limits as well as maintaining the permitted number of total contacts, and assume full responsibility for any non-compliance, and as a result, denied access to any individual features or to the Website. Further, You accept the sharing features available through the Website “as is” and take full responsibility for all sharing and email attempts that are undelivered, pending delivery, successfully delivered, or in any other status to your recipients.


Fireplace 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. Fireplace has the right (though not the obligation) to terminate or deny access to and use of the Website to any individual or entity for any reason, in Fireplace's sole discretion, including but not limited to, the use of any individual features. Fireplace will have no obligation to provide a refund of any amounts previously paid.


2. Responsibility of Contributors

If you publish a flyer, comment on a flyer, post material to the Website, post links on the Website, or otherwise make (or allow any third party to make) material available by means of the Website (any such material, “Content”), You are entirely responsible for the content of, and any harm resulting from, that Content. That is the case regardless of whether the Content in question constitutes text, graphics, an audio file, linked or embedded content, or computer software. By making Content available, you represent and warrant that:

  • the downloading, copying and 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, including but not limited to any software, 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 does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;

  • the Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);

  • the Content is not pornographic, does not contain threats or incite violence, and does not violate the privacy or publicity rights of any third party;

  • your flyer is not getting advertised via unwanted electronic messages such as spam links on newsgroups, email lists, other blogs and web sites, and similar unsolicited promotional methods;

  • your flyer is not titled in a manner that misleads your readers into thinking that you are another person or company. For example, your flyer's URL or name is not the name of a person other than yourself or company other than your own; and

  • you have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by Fireplace or otherwise.


By submitting Content to Fireplace for inclusion on your Website, you grant Fireplace a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your flyer. If you delete Content, Fireplace will use reasonable efforts to remove it from the Website, but you acknowledge that caching or references to the Content may not be made immediately unavailable.


Without limiting any of those representations or warranties, Fireplace has the right (though not the obligation) to, in Fireplace's sole discretion (i) refuse or remove any content that, in Fireplace's reasonable opinion, violates any Fireplace 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 Fireplace's sole discretion, including but not limited to, the use of any individual features. Fireplace will have no obligation to provide a refund of any amounts previously paid.


3. Payment and Renewal

General Terms

In addition to our Free basic account, we offer paid accounts and services such as premium Smore Pro packages. All paid accounts are available on the Website as an “Upgrade.” By selecting an Upgrade you agree to pay Fireplace the monthly or annual subscription fees indicated for that service. Payments will be charged on a pre-pay basis on the day you sign up for an Upgrade and will cover the use of that service for a monthly or annual subscription period as indicated.


Automatic Renewal


Unless you notify Fireplace within three (3) business days prior to the end of the applicable subscription period that you want to cancel an Upgrade your subscription will automatically renew and you authorize us to collect the then-applicable monthly or annual subscription fee for such Upgrade (as well as any taxes) using any credit card or other payment mechanism we have on record for you. Upgrades can be canceled at any time in your account page.

3A. Upgrades and Downgrades

Following is a description of how Smore handles upgrades and downgrades for Pro subscribers, Smore subscribers with an already paid monthly or annual subscription.


Upgrades

When a paying customer decides to change their current plan to a more expensive plan.


For this example, let's assume that Alice subscribed to the Personal plan ($19/month) on January 1st, and that on January 15th she decides to upgrade to the Business plan ($49/month).


  1. We refund Alice for her 16 remaining days on the Personal plan (about $9.80).

  2. We charge Alice for one whole month of the Business plan ($49.00).

  3. On February 15th, her plan will auto-renew.

  4. Alice can cancel at any time, in which case her plan will not auto-renew and Smore will not charge her again.


By March 15th, Alice paid for 15 days of the Personal plan and one month of the Business plan.


Downgrades

When a paying customer chooses to change their plan from a more expensive plan to a less expensive (but still paid) plan.


For this example, let's assume that Barbara subscribed to the Business plan ($49/month) on January 1st, and that on January 15th she decides to downgrade to the Personal plan ($19/month).


  1. Since Barbara already paid for a month of the Business plan (her billing period ends after one month, on February 1st), she will continue to enjoy the Business plan until February 1st.

  2. On February 1st, her plan will auto-renew, but instead of the Business plan she will now be on the Personal plan.

  3. Barbara will be charged $19 for one month of Personal service.


A downgrade from an annual subscription to a monthly subscription can only occur at the end of the annual subscription period. When a user decides to switch from any paid account to a Free account, that is called a cancellation.

3B. Refunds

Fireplace has a 30 day refund policy on your first time purchase and subscription payment. Fireplace will refund in full the initial subscription fees under the following conditions:

  1. The user had cancelled their paid account. You can confirm that your account has been cancelled and is a free account in the account page.

  2. The user asked for a refund either via emailing Smore support directly, or by submitting a support request through the site's Help button.

  3. Both (1) AND (2) happen within 30 days of initially subscribing to a Pro or Educator account.


After the cancellation period, the first 30 days of the first time subscription, all purchases are final and non-refundable including all renewal fees. Fireplace does not provide refunds or credits for Monthly or Annual accounts that are renewed, automatically or otherwise. If you are on a Monthly or Annual billing plan, you can cancel your subscription at any time and you will continue to have access to your Pro features on your account through the end of your billing period.


Pro account Upgrade fees

Upgrade fees will not be refundable. An upgrade fee is the fee charged when upgrading from a paid account to a more expensive paid account. The fee will be calculated as stated above in section 3A.


One-time charges and Add-on paid features

One-time charges such as flyer credits and add-on paid features such as the Classroom feature are non-refundable. If you've made a purchase by accident or believe you deserve a refund for a one-time charge, please contact Fireplace support directly.


Currency conversion and extra charges

For technical reasons beyond Fireplace's control, it can only refund the original amount charged, in US Dollars. In some cases, credit card providers or banks may charge an additional fee, making the total expense larger than what Fireplace originally intended to charge. This may happen if the user is being billed in their home country's currency, for example. Fireplace is not responsible and is unable to refund these extra fees and charges.

4. Responsibility of Website Visitors

Fireplace has not reviewed, and cannot review, all of the material, including computer software, posted to the Website, and cannot therefore be responsible for that material’s content, use or effects. By operating the Website, Fireplace does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Website may contain content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. The Website may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. Fireplace disclaims any responsibility for any harm resulting from the use by visitors of the Website, or from any downloading by those visitors of content there posted.

5. Content Posted on Other Websites

We have not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages to which Smore links, and that link to Smore flyers. Fireplace does not have any control over those non-Smore websites and webpages, and is not responsible for their contents or their use. By linking to a non-Smore website or webpage, Fireplace does not represent or imply that it endorses such website or webpage. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Fireplace disclaims any responsibility for any harm resulting from your use of non-Smore websites and webpages.

6. Copyright Infringement and DMCA Policy

As Fireplace 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 Smore violates your copyright, you are encouraged to notify Fireplace. We will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. Fireplace will terminate a visitor’s 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 Fireplace or others. In the case of such termination, Fireplace will have no obligation to provide a refund of any amounts previously paid to Fireplace.


7. Intellectual Property

This Agreement does not transfer from Fireplace to you any Fireplace or third party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with Fireplace. Fireplace, Smore, Smore.com, the Smore logo, and all other trademarks, service marks, graphics and logos used in connection with Smore, or the Website are trademarks or registered trademarks of Fireplace or Fireplace’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 Fireplace or third-party trademarks.


8. Advertisements

Fireplace reserves the right to display advertisements on your flyers unless you have purchased a Smore Pro package. However, currently there are no plans to do so.

9. Attribution

Fireplace reserves the right to display attribution links such as 'Powered by Smore' in your flyer footer, toolbar or sidebar. Footer credits and the Smore toolbar may or may not be removed depending on the upgrades purchased.

10. Domain Names

If you are registering a domain name, using or transferring a previously registered domain name, you acknowledge and agree that use of the domain name is also subject to the policies of the Internet Corporation for Assigned Names and Numbers (“ICANN”), including their Registration Rights and Responsibilities.

11. Changes

Fireplace 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. Fireplace 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.

12. Termination

Fireplace 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 Smore account (if you have one), you must delete your paid account following the instructions here, or for free users you may simply discontinue using the Website and the services provided by Smore. 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.

13. Disclaimer of Warranties

The Website is provided “as is”. Fireplace 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 Fireplace 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, or otherwise obtain content or services through, the Website at your own discretion and risk.

14. Limitation of Liability

In no event will Fireplace, 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 Fireplace under this agreement during the twelve (12) month period prior to the cause of action. Fireplace 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.


15. General Representation and Warranty

You represent and warrant that (i) your use of the Website will be in strict accordance with the Fireplace Privacy Policy, 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 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.


16. Indemnification

You agree to indemnify and hold harmless Fireplace, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website, including but not limited to your violation of this Agreement.

17. Miscellaneous

This Agreement constitutes the entire agreement between Fireplace and you concerning the subject matter hereof, and they may only be modified by a written amendment signed by an authorized executive of Fireplace, or by the posting by Fireplace 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 Washington, 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 King County, Washington. 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 Seattle, Washington, 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 parties’ 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; Fireplace 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.


Appendix: Changes

November 21, 2016 : Updated sections 1, 3, 12 and Introduction

April 30, 2015: Added section 3B detailing Fireplace's refund policy.

December 18, 2014: Changed plan names in section 3A.

March 12, 2013: Added upgrade and downgrade sections.

March 1, 2013: Initial terms published.