Smore Terms of Service
Updated August 23, 2018
We (the folks at Fireplace) run an online marketing and newsletter 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 newsletters 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 newsletters 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
Please read this Agreement carefully before accessing or using the Website or Services. By accessing or using any part of the Website, using the Services, creating an account, or clicking on the “I accept” button 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. If you are under the age of 18, you represent that your parent or legal guardian has read, reviewed, and agreed to these terms. If you are a student under the age of 18 please speak to your parents and teacher about accessing a student account before proceeding here. If you are an educator or school you represent that you obtained permission from your students parent or guardian for your students to use the website through the “Classroom” feature. If you are accepting these Terms and using the Website and Services on behalf of a child, company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so.
IF YOU SUBSCRIBE TO THE PAID SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT FIREPLACE’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL IN ACCORDANCE WITH SECTION 3 BELOW.
PLEASE BE AWARE THAT SECTION 17 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
If a user is found to violate this Agreement, Fireplace reserves the right to terminate or deny access to and use of the Website or Service to any individual or entity and is Fireplace's sole discretion, including but not limited to, the use of any individual features. 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 will have no obligation to provide a refund of any amounts previously paid.
We continuously make improvements and changes to the website or to its individual features. These updates may result in the complete removal, restriction, or new limits to certain parts of the service to you at any time, and without notice or liability, for example, restricting the ability to edit previously published newsletters. 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 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 will have no obligation to provide a refund of any amounts previously paid.
Education Usage & Eligibility:
The Smore annual Educator account is only licensed for use by teachers, professors, or other educators and by their students under the educator's direct supervision in accordance with this the terms of this Agreement. If you are not a teacher, professor, or educator, you may not use the Smore annual Educator account.
1. Your Smore Account
If you create an account on the Website, you are responsible for maintaining the security and privacy of your account, and you are fully responsible for all activities that occur under the account and any other actions taken in connection therein. You must keep your individual account and login credentials and passwords confidential and not authorize anyone else to use the Website or Services on your and/or their behalf. You must immediately notify Fireplace of any unauthorized uses of 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.
2. Responsibility of Contributors
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 using the Mailing list feature through the Website and Services, 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 and Services “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.
If you publish a newsletter, comment on a newsletter, post material to the Website or Services, post links on the Website or Services, or otherwise make (or allow any third party to make) materials, including text, images, pictures, video, audio visual content, and other content available by means of the Website or Services (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;
you have either own or have received all necessary rights to post or make available the Content in accordance with the terms of this Agreement;
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 unlawful, obscene, pornographic, does not contain threats or incite violence, and does not violate the privacy or publicity rights of any third party;
your newsletter 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 newsletter is not titled in a manner that misleads your readers into thinking that you are another person or company. For example, your newsletter'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 the Website or Service, you grant Fireplace a world-wide, royalty-free, fully-paid, transferable, sublicensable and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of providing the Services. 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
We offer both free and paid Services. 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.
Your subscription will continue indefinitely until terminated in accordance with this Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Fireplace’s then-current price for such subscription. 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. IF YOU CANCEL YOUR SUBSCRIPTION, YOU MAY USE YOUR SUBSCRIPTION UNTIL THE END OF YOUR THEN-CURRENT SUBSCRIPTION TERM; YOUR SUBSCRIPTION WILL NOT BE RENEWED AFTER YOUR THEN-CURRENT TERM EXPIRES.
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.
When a paying customer decides to change their current plan to a more expensive plan, we will (i) cancel that customer’s then-current plan and refund them on a pro-rated basis, and charge them for the new plan in full.
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).
We refund Alice for her 16 remaining days on the Personal plan (about $9.80).
We charge Alice for one whole month of the Business plan ($49.00).
On February 15th, her plan will auto-renew.
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.
When a paying customer chooses to change their plan from a more expensive plan to a less expensive (but still paid) plan, we will (i) permit that customer to continue to use their then-current plan for the remainder of the subscription term and not automatically renew such plan, and (ii) following the expiration of such term, charge that customer in full for their newly selected 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).
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.
On February 1st, her plan will auto-renew, but instead of the Business plan she will now be on the Personal plan.
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.
Fireplace has a 30 day refund policy on your initial purchase and subscription payment. Fireplace will refund in full the initial subscription fees under the following conditions:
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.
The user asked for a refund either via emailing Smore support directly, or by submitting a support request through the site's Help button.
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, except as expressly provided herein. 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 newsletter 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
5. Content Posted on Other Websites
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. Without limiting the foregoing, if you believe that your work has been copied and posted on Website or Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Website or Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) 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. Contact information for Fireplace’s Copyright Agent for notice of claims of copyright infringement is as follows: Shlomi Atar, 45 Rothschild Blvd Floor 6 Tel Aviv, Israel 6578403. Email address: firstname.lastname@example.org
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, including with respect to the Website and Services, 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.
10. Domain Names
13. Disclaimer of Warranties
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
17. Dispute Resolution
18. Applicability of Arbitration Agreement
19. Arbitration Rules and Forum
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
20. Authority of Arbitrator
21. Waiver of Jury Trial
22. Waiver of Class or Other Non-Individualized Relief
23. 30-Day Right to Opt Out
25. Survival of Agreement
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 or Services will be governed by the laws of the state of Washington, U.S.A., excluding its conflict of law provisions. 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.
August 23, 2018: added a provision to section 16
July 19, 2018: Updated Intro, Downgrades section, Dispute resolutions, arbitration agreement.
February 2, 2018: Updated introduction to include educator usage & eligibility.
July 24, 2017: Updated section 1 clarify feature changes and Intro on website age policy.
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.