Smith
Creations Products and Services:
This
Web site, located at www.smithcreations.com
or www.texsoft.net, and all content and
services available through it
(collectively, the "Site") are
provided by Smith Creations ("SC")
under this Terms of Service and any
amendments to the Terms that SC may
publish from time to time (the
"Terms"). BY ACCESSING,
BROWSING, PURCHASING THROUGH OR USING THE
SITE, YOU AGREE TO BE BOUND BY THE TERMS.
If you do not agree to abide by the Terms,
please do not use the Site or download
content from the Site.
Check-Out Process
In placing an order, you agree to provide
only true, accurate, current and complete
information during the check-out process,
and agree to update that information to
keep it true, accurate, current and
complete. SC shall have the right to bar
your access to the Site if it has
reasonable grounds to believe that you
have provided untrue, inaccurate, not
current, or incomplete information to SC.
Intellectual Property Rights
This Site, including all graphics, text,
photographs, drawings, software, sound,
videos or other material available through
the Site (collectively, the
"Content"), is protected by
worldwide copyright, trademark and other
proprietary laws and treaty provisions.
Except as expressly authorized by SC or
the applicable third party from whom the
Content originated, you agree not to
modify, rent, lease, loan, sell, assign,
distribute, license, sublicense, reverse
engineer or create derivative works based
on the Site or any Content available
through the Site. SC authorizes you to
view and download one copy of the Content
available through the Site only for your
personal, non-commercial use, provided
that you keep all copyright and other
proprietary notices intact. You agree not
to access the Site, or provide access to
the Site, by means other than the
interface that is provided by SC for use
in accessing the Site.
Representations and Warranties
You represent and warrant that:
a. you are over the age of 18 and
can form a legally binding contract under
applicable law.
b. you have
provided and will continue to provide only
true, accurate, current and complete
information about yourself when filling
out the SC checkout form (the
"Form"). The billing address you
provide to SC on the Form should be the
address and phone number your credit card
bank has on file for you.
c. you are not
using the SC service for any improper
purpose, and you will act in good faith in
your relationship with SC.
d. you have
sufficient authority, if you are
purchasing on behalf of a company, to bind
that company to the Terms.
User Conduct
You understand and agree that all Content
on your website is the sole responsibility
of the person(s) who signed up or purchased
the web site and/or design, which means
you are responsible for all Content you
post, transmit, display or allow to
display via your Web Site.
You agree that you will not use
your Site in any way to:
a. transmit any Content that is
harassing, unlawful, defamatory, abusive,
threatening, obscene, harmful, tortuous,
invasive of another's privacy or right of
publicity, or that infringes any
copyright, trademark, trade secret, patent
or other proprietary right, or that is
otherwise objectionable;
b. transmit
viruses or other harmful, disruptive or
destructive files, codes or programs;
c. violate any
local, state, national or international
law or regulation or transmit any Content
that you do not have the right to
disseminate under law, or contractual or
fiduciary relationships;
d. interfere
with, disrupt or harm in any way the Site
or servers or networks connected to the
Site;
e. collect or
store personal data about other users;
f. harm minors in
any way.
g. transmit any
unauthorized advertising, promotional
materials, spam, or other type of
unsolicited mass-e-mail to any party who
has not agreed to be part of such
mailings.
Information Provided by You; Privacy
Policy
SC
respects the privacy of its users. For
more details, see our privacy
policy which is incorporated herein.
Orders, Payment Terms
You agree that your placement of an order
to SC is sufficient to satisfy the Statute
of Frauds, and no further writing is
required. Terms of payment are within SC¹s
sole discretion, and unless otherwise
agreed by SC, payment must be received by SC
prior to SC¹s acceptance of an order. SC
may accept payment via SC Credit Card,
Visa, MasterCard, Discover and American
Express. Orders are not binding until the
order is accepted by SC. SC may need to
verify any information you provide before SC
accepts an order, and may cancel or limit
an order any time after it has been
placed. SC expressly conditions it
acceptance of your order on your agreement
to the Terms. Invoices are due and payable
within the time period indicated on the
invoice. You agree to pay interest on all
past-due sums at the highest rate allowed
by law.
Returns
NO Refunds will be given on website
design. Once the work has started,
regardless of whether or not it has been
published on the Internet, refunds will
NOT be granted. NO FULL or PARTIAL refunds
will be given. Merchandise purchased on
the Site may be returned within 30 days of
purchase with original receipt and all
merchandise tags attached. All returned
merchandise must be in "as-new"
condition. Refunds are issued in the same
tender as the original purchase. SC will
not reimburse for shipping and handling
charges. Please send returns to Smith Creations,
732 Crestline Dr., Mexia, TX 76667.
Shipping
Unless otherwise noted, SC will make best
efforts to ship any merchandise within 2
days of the receipt of a properly
completed order. However, any delivery or
shipment date provided by SC to you is SC's
good faith estimate. You understand that
product availability may be limited and
particular products may not be available
for immediate delivery. SC shall not be
liable for any loss, damage, cost or
expense related to any delay in shipment
or delivery. SC cannot ship to P.O. Boxes.
Title to any product and risk of loss
passes from SC to you on shipment from SC¹s
facility. You will be charged separately
for shipping and handling, and all
shipping and handling charges will appear
on the check-out form when you submit an
order.
Pricing and Sales Tax
Reference prices (including
"list" prices) reflect the
Manufacturer's suggested retail price, and
reflect prices which may not have resulted
in sales. Prices are subject to change. If
a discrepancy arises between the price
quoted on the Site and on the check-out
page, the latter will prevail. In the
event a product is listed at an incorrect
price due to a typographical or other
error, SC shall have the right to refuse,
cancel or limit any order placed for
products listed at the incorrect price,
whether or not an order confirmation has
been sent and/or payment has been made. If
payment has already been made and your
order is canceled or limited, SC shall
refund any payment you made for any item
that will not be shipped due to
cancellation or limitation of an order in
the same tender as the original purchase. SC
shall automatically charge and withhold
the applicable sales tax for orders to be
delivered to addresses within Texas. You
are solely responsible for all sales
taxes, or other taxes, on orders shipped
to any other state.
Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT
YOUR USE OF THE SITE IS AT YOUR SOLE RISK
AND THAT THE SITE IS PROVIDED ON AN
"AS IS" AND "AS
AVAILABLE" BASIS. TO THE FULLEST
EXTENT PERMISSIBLE PURSUANT TO APPLICABLE
LAW, IN REGARD TO THE SITE AND ALL CONTENT
THEREON, SC EXPRESSLY DISCLAIMS ALL
WARRANTIES OF ANY KIND, INCLUDING WITHOUT
LIMITATION ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT. CERTAIN
WARRANTIES IN REGARD TO PARTICULAR
PRODUCTS FOR SALE ON THE SITE MAY BE
APPLICABLE THROUGH MANUFACTURERS'
WARRANTIES, THOUGH NOT THROUGH SC. SEE THE
WARRANTIES INCLUDED IN THE DOCUMENTATION
ALONG WITH THE PRODUCTS AND SERVICES FOR
FURTHER DETAILS REGARDING WARRANTIES
PROVIDED BY MANUFACTURERS OF PRODUCTS
AVAILABLE THROUGH THE SITE. THE CONTENT ON
SC SITE AND /OR THE DESIGNED WEB SITE
ORDER MAY CONTAIN INACCURACIES AND
TYPOGRAPHICAL ERRORS. SC DOES NOT WARRANT
THE ACCURACY OR COMPLETENESS OF THE
CONTENT OR THE RELIABILITY OF ANY ADVICE,
OPINION, STATEMENT, PRICE AVAILABILITY OR
OTHER INFORMATION DISPLAYED OR DISTRIBUTED
THROUGH THE SITE. YOU ACKNOWLEDGE THAT ANY
RELIANCE ON ANY SUCH OPINION, ADVICE,
STATEMENT, PRICE AVAILABILITY, OR OTHER
INFORMATION SHALL BE AT YOUR SOLE RISK. SC
DOES NOT MAKE ANY WARRANTY THAT YOUR WEB
SITE DESIGN WILL MEET YOUR REQUIREMENTS,
OR THAT THE SITE WILL BE UNINTERRUPTED,
TIMELY, SECURE, OR ERROR FREE, OR THAT
DEFECTS IN THE SITE, IF ANY, WILL BE
CORRECTED. YOU UNDERSTAND AND AGREE THAT
ANY MATERIAL AND/OR DATA DOWNLOADED OR
OTHERWISE OBTAINED THROUGH THE SITE IS AT
YOUR OWN DISCRETION AND RISK AND THAT YOU
ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO
YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT
RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL
AND/OR DATA. SOME JURISDICTIONS DO NOT
ALLOW FOR THE EXCLUSION OF IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSIONS MAY
NOT APPLY TO YOU. SOME ITEMS MAY COME WITH
A MANUFACTURER¹S WARRANTY, WHICH WILL
VARY FROM PRODUCT TO PRODUCT.
Limitation of Liability
IN NO EVENT, INCLUDING WITHOUT LIMITATION,
NEGLIGENCE, SHALL SC, ITS PARENTS,
SUBSIDIARIES, AFFILIATES, AGENTS,
OFFICERS, DIRECTORS, EMPLOYEES OR
SUPPLIERS BE LIABLE TO ANY ENTITY FOR ANY
INDIRECT, SPECIAL, EXEMPLARY,
CONSEQUENTIAL OR OTHER DAMAGES (INCLUDING,
WITHOUT LIMITATION, ANY LOST PROFITS,
BUSINESS INTERRUPTION, LOSS OF INFORMATION
OR PROGRAMS OR OTHER DATA ON YOUR
INFORMATION HANDLING SYSTEM) THAT ARISE
OUT OF OR OTHERWISE ARE RELATED TO THE USE
OF, OR THE INABILITY TO USE, THE CONTENT
OR THE SITE OR ANY LINKED WEBSITE, THE
STATEMENTS OF ANY THIRD PARTY ON THE SITE,
OR UNAUTHORIZED ACCESS TO THE SITE, YOUR
TRANSMISSIONS, YOUR ACCOUNT OR YOUR
PASSWORD, EVEN IF SC IS EXPRESSLY ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. SOME
JURISDICTIONS DO NOT ALLOW THE LIMITATION
OR EXCLUSION OF LIABILITY FOR INCIDENTAL
OR CONSEQUENTIAL DAMAGES SO SOME OF THE
ABOVE MAY NOT APPLY TO YOU.
Indemnification
You
agree to indemnify and hold harmless SC,
its parents, subsidiaries, affiliates,
officers, directors, agents, employees,
co-branders or other partners, and
suppliers, from any claim, demand, action
or damage, including reasonable attorney's
fees, made or incurred by any third party
arising out of or related to your use of
the Site, any Content you transmit via the
Site, or your violation of the Terms.
Changes to the Terms
SC reserves the right, in its sole
discretion, to change, modify, add or
remove any portion of the Terms in whole
or in part, at any time. Changes in the
Terms will be effective when notice of
such change is posted on SC's homepage.
Your continued use of the Site after any
changes to these Terms are posted will be
considered acceptance of those changes.
You should periodically check the
"Terms of Service" link on SC's
homepage to view the then current Terms.
Changes to the Site
SC may, in its sole discretion, terminate,
change, suspend or discontinue any aspect
of the SC Site, temporarily or
permanently, including the availability of
any features of the Site or access to any
parts of the Site, at any time without
notice to you, and you agree that SC shall
not be liable therefore.
Termination
You agree that SC, in its sole discretion
and at any time without notice to you, may
terminate your use of the Site, including
without limitation, your password and
account, and may remove or delete any
Content on the Site or within your
account, including Content you have
provided to SC or transmitted through the
Site. You further agree that SC shall not
be liable for any termination of your use
of or access to the Site. In the event of
any termination of the Terms, or your use
of or access to the Site, you agree that
the provisions regarding Intellectual
Property Rights, Indemnification,
Disclaimer of Warranties, Limitations of
Liability, and General shall survive any
such termination.
Storage of Content
You agree that SC may establish, in its
sole discretion and without prior notice
to you, a maximum amount of storage space
that it will maintain for Content
transmitted through the Site, and you
agree that SC has no responsibility or
liability for the deletion or failure to
store any messages, communications or
other Content transmitted through the
Site.
Your
Contact With Third Parties
Your dealings or communications through
the Site with any party other than SC are
solely between you and that third party,
and SC does not make any representations
or warranties with respect to any goods,
services or information which may be
obtained from such third parties and SC
shall not be liable therefore.
Links
The Site, or third parties on the Site,
may provide links to other sites and/or
resources over which SC has no control,
and SC shall not be liable for the
content, advertising, products or other
materials available through such other
sites or resources.
No Reselling of Services on the Site
You agree not to sell, resell, reproduce,
duplicate, copy or use for any
unauthorized purposes any portion of the
Site, or use of or access to the Site.
International
Users
This Site is controlled, operated and
administered by SC from its offices within
the United States of America. SC makes no
representation that materials on the Site
are appropriate or available for use at
other locations outside of the United
States and access to them from territories
where their contents are illegal is
prohibited. You may not use the Site or
export the Content in violation of U. S.
export laws and regulations. If you access
this Site from a location outside of the
United States, you are responsible for
compliance with all local laws.
Choice of Law and Forum; Arbitration
The Terms shall be governed by the laws of
the State of Texas, without giving effect
to its conflict of laws provisions. Any
claim or controversy arising in any way
out of or relating to the Terms shall be
filed in a court of competent jurisdiction
sitting in Limestone County, Texas. Both
parties consent to exclusive jurisdiction
in that county, provided, however that
either party may elect to settle any
litigation in any way arising out of or
relating to these Terms of Service by
binding arbitration in accordance with the
commercial arbitration rules of the
American Arbitration Association. If
elected, such arbitration shall be
conducted in Groesbeck, Texas, and
judgment on the arbitration award may be
entered into any court having jurisdiction
thereof.
Language
It is the express wish of the parties that
the Terms and all related documents have
been drawn up in English. C'est la volonté
expresse des parties que la présente
convention ainsi que les documents qui s'y
rattachent soient rédigés en anglais.
General
Except as explicitly stated otherwise,
notice to SC shall be given by postal mail
to Smith Creations, Attn: Legal
Department, 732 Crestline Dr., Mexia, TX
76667 and notice to you shall be given by
an e-mail sent to the address you provided
during the checkout process or through a
general notice posted on SC's homepage. In
addition, SC may give you notice by
certified mail to the postal address
provided during the checkout process.
Postal notice shall be deemed given 3 days
after the date of mailing. E-mail notice
shall be deemed given 24 hours after the
e-mail is sent, unless the sending party
is notified that the e-mail address is
invalid.
The Terms constitutes the entire agreement
between SC and you with respect to your
use of the Site. Any cause of action you
may have with respect to the Site must be
commenced within one hundred and twenty days
(120) days after the claim or cause of
action arises, notwithstanding any
statutes of limitations to the contrary.
If for any reason a court of competent
jurisdiction finds any provision of the
Terms or portion thereof, to be
unenforceable, that provision shall be
enforced to the maximum extent permissible
so as to effect the intent of the parties
as reflected by that provision, and the
remainder of the Terms shall continue in
full force and effect. Any failure by SC
to enforce or exercise any provision of
the Terms or related right shall not
constitute a waiver of that right or
provision. The section titles used in the
Terms are purely for convenience and carry
with them no legal or contractual effect.
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