Smarkup Terms of Services

Effective date: April 5, 2017

A. Definitions

Short version: We use these basic terms throughout the agreement, and they have specific meanings. You should know what we mean when we use each of the terms. There’s not going to be a test on it, but it’s still useful information.

1. Required Information

  1. The “Agreement” refers, collectively, to all the terms, conditions, notices contained or referenced in this document (the “Terms of Service” or the “Terms”) and all other operating rules, policies (including the Smarkup Privacy Statement, available at smarkup.com/privacy) and procedures that we may publish from time to time on the Website.
  2. The “Service” refers to the applications, software, products, and services provided by Smarkup.
  3. The “Website” refers to Smarkup’s website located at smarkup.com, and all content, services, and products provided by Smarkup at or through the Website. It also refers to Smarkup-owned subdomains of smarkup.com, such as blog.smarkup.com and Smarkup Pages. Occasionally, websites owned by Smarkup may provide different or additional terms of service. If those additional terms conflict with this Agreement, the more specific terms apply to the relevant page or service.
  4. “The User,” “You,” and “Your” refer to the individual person, company, or organization that has visited or is using the Website or Service; that accesses or uses any part of the account; or that directs the use of the account in the performance of its functions. Special terms may apply for business or government accounts (See Section B(4): Additional Terms).
  5. “Smarkup,” “We,” and “Us” refer to Smarkup Limited, 16 South Main Street, Naas, Co. Kildare, Republic of Ireland, as well as our affiliates, directors, subsidiaries, contractors, licensors, officers, agents, and employees.
  6. “Content” refers to content featured or displayed through the Website, including without limitation text, data, articles, images, photographs, graphics, software, applications, designs, features, and other materials that are available on the Website or otherwise available through the Service. “Content” also includes Services. “User-Generated Content” is Content, written or otherwise, created or uploaded by our Users. “Paid Content” is Content only available to Users who are participating in a payment plan, including private documents.

B. Account terms

Short version: A human must create your account; and you must provide a valid email address. You alone are responsible for your account and anything that happens while you are signed in to or using your account. You are responsible for keeping your account secure.

1. Required Information

You must provide a valid email address in order to complete the signup process. Any other information requested, such as your real name, is optional, unless you are accepting these terms on behalf of a legal entity (in which case we need more information about the legal entity) or if you opt for a paid account, in which case additional information will be necessary for billing purposes.

2. Account requirements

We have a few simple rules for accounts on Smarkup’s Service.

  1. You must be a human to create an account. Accounts registered by “bots” or other automated methods are not permitted. We do permit machine accounts:
  2. A machine account is an account set up by an individual human who accepts the Terms on behalf of the account, provides a valid email address, and is responsible for its actions. A machine account is used exclusively for performing automated tasks. Multiple users may direct the actions of a machine account, but the owner of the account is ultimately responsible for the machine’s actions.
  3. If you are a resident of the United States, you must be age 13 or older. If you are a resident of a country outside the United States, your country’s minimum age may be older; in such a case, you are responsible for complying with your country’s laws.
  4. Your login may only be used by one person — i.e., a single login may not be shared by multiple people.
  5. Overall, the number of Users must not exceed the number of accounts you’ve ordered from us.

3. User Account Security

You are responsible for keeping your account secure while you use our Service. The content of your account and its security are up to you.

  • You are responsible for all content posted and activity that occurs under your account (even when content is posted by others who have accounts under your account).
  • You are responsible for maintaining the security of your account and password. Smarkup cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
  • You will promptly [notify Smarkup][26] if you become aware of any unauthorized use of, or access to, our Service through your account, including any unauthorized use of your password or account.

4. Additional Terms

In some situations, third parties’ terms may apply to your use of Smarkup. For example, you may be a member of an organization on Smarkup with its own terms or license agreements; you may download an application that integrates with Smarkup; or you may use Smarkup to authenticate to another service. Please be aware that while these Terms are our full agreement with you, other parties’ terms govern their relationships with you.

If you are an owner or administrator of an Organization on Smarkup, additional terms may govern your relationship with us and supersede this Agreement.

C. Acceptable Use

Short version: Smarkup hosts a wide variety of collaborative projects from all over the world, and that collaboration only works when our users are able to work together in good faith. While using the service, you must follow this Acceptable Use Policy, which includes some restrictions on content you can post, conduct on the service, and other limitations. In short, be excellent to each other.

1. Compliance with Laws and Regulations

Your use of the Website and Service must not violate any applicable laws, including copyright or trademark laws, export control laws, or other laws in your jurisdiction. You are responsible for making sure that your use of the Service is in compliance with laws and any applicable regulations.

2. Content Restrictions

You agree that you will not under any circumstances upload, post, host, or transmit any content that:

  • is unlawful or promotes unlawful activities;
  • is or contains sexually obscene content;
  • is libelous, defamatory, or fraudulent;
  • is discriminatory or abusive toward any individual or group;
  • contains or installs any active malware or exploits, or uses our platform for exploit delivery (such as part of a command and control system); or
  • infringes on any proprietary right of any party, including patent, trademark, trade secret, copyright, right of publicity, or other rights.

3. Conduct Restrictions

While using Smarkup, you agree that you will not under any circumstances:

  • harass, abuse, threaten, or incite violence towards any individual or group, including Smarkup employees, officers, and agents, or other Smarkup Users;
  • use our servers for any form of excessive automated bulk activity (for example, spamming), or relay any other form of unsolicited advertising or solicitation through our servers, such as get-rich-quick schemes;
  • attempt to disrupt or tamper with Smarkup’s servers in ways that could harm our Website or Service, to place undue burden on Smarkup’s servers through automated means, or to access Smarkup’s Service in ways that exceed your authorization
  • impersonate any person or entity, including any of our employees or representatives, including through false association with Smarkup, or by fraudulently misrepresenting your identity or site’s purpose; or
  • violate the privacy of any third party, such as by posting another person’s personal information without consent.

4. Services Usage Limits

You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without Smarkup’s express written permission.

5. Scraping

Scraping refers to extracting data from our Website via an automated process, such as a bot or webcrawler. It does not refer to the collection of information through Smarkup’s API. Please see Section G for our API Terms. You may scrape the website for the following reasons:

  • Researchers may scrape public, non-personal information from Smarkup for research purposes, only if any publications resulting from that research are open access.
  • Archivists may scrape Smarkup for public data for archival purposes.

You may not scrape Smarkup for spamming purposes, including for the purposes of selling Smarkup users’ personal information, such as to recruiters, headhunters, and job boards.

All use of Smarkup data gathered through scraping must comply with the Smarkup Privacy Statement.

6. Privacy

Misuse of Smarkup Users’ Personal Information is prohibited.

Any person, entity, or service collecting data from Smarkup must comply with the Smarkup Privacy Statement, particularly in regards to the collection of our Users’ Personal Information (as defined in the Smarkup Privacy Statement). If you collect any Smarkup User’s Personal Information from Smarkup, you agree that you will only use the Personal Information you gather for the purpose for which our User has authorized it. You agree that you will reasonably secure any Personal Information you have gathered from Smarkup, and you will respond promptly to complaints, removal requests, and “do not contact” requests from Smarkup or Smarkup Users.

7. Excessive Bandwidth Use

If we determine your bandwidth usage to be significantly excessive in relation to other Smarkup customers, we reserve the right to suspend your account or throttle your file hosting until you can reduce your bandwidth consumption.

8. User Protection

You agree not to engage in activity that significantly harms our Users. We will resolve disputes in favor of protecting our Users as a whole.

D. User-Generated Content

Short version: You own content you create, but you allow us certain rights to it, so that we can display and share the content you post. You still have control over your content, and responsibility for it, and the rights you grant us are limited to those we need to provide the service. We have the right to remove content or close accounts if we need to.

1. Responsibility for User-Generated Content

You may create User-Generated Content while using the Service. You are solely responsible for the content of, and any harm resulting from, any User-Generated Content that you post, upload, link to or otherwise make available via the Service, regardless of the form of that Content. We are not responsible for any public display or misuse of your User-Generated Content.

2. Ownership of Content and Right to Post

You retain ownership of and responsibility for Content you create. If you’re posting anything you did not create yourself, you agree that you will only submit Content that you have the right to post, and you will fully comply with any third party licenses relating to Content you post.

3. Smarkup May Remove Content

We do not pre-screen User-Generated Content, but we have the right (though not the obligation) to refuse or remove any User-Generated Content that, in our sole discretion, violates any Smarkup terms or policies.

4. License Grant to Us

Your Content belongs to you, and you are responsible for Content you post even if it does not belong to you. However, we need the legal right to do things like host it, publish it, and share it. You grant us and our legal successors the right to store and display your Content and make incidental copies as necessary to render the Website and provide the Service.

That means you’re giving us the right to do things like reproduce your content (so we can do things like copy it to our database and make backups); display it (so we can do things like show it to you and other users); modify it (so our server can do things like parse it into a search index); distribute it (so we can do things like share it with other users); and perform it (in case your content is something like music or video).

This license does not grant Smarkup the right to sell your Content or otherwise distribute it outside of our Service.

5. License Grant to Other Users

Any Content you post publicly, including comments, and contributions to other Users’ documents, may be viewed by others. By setting your documents to be viewed publicly, you agree to allow others to view and “fork” your documents (this means that others may make their own copies of your Content in documents they control).

If you set your pages and documents to be viewed publicly, you grant each User of Smarkup a nonexclusive, worldwide license to access your Content through the Smarkup Service, and to use, display and perform your Content, and to reproduce your Content solely on Smarkup as permitted through Smarkup’s functionality.

6. Contributions Under Document License

Whenever you make a contribution to a document containing notice of a license, you license your contribution under the same terms, and you agree that you have the right to license your contribution under those terms. If you have a separate agreement to license your contributions under different terms, such as a contributor license agreement, that agreement will supercede.

Isn’t this just how it works already? Yep. This is widely accepted as the norm in the open-source community; it’s commonly referred to by the shorthand “inbound=outbound”. We’re just making it explicit.

7. Moral Rights

You retain all moral rights to Content you upload, publish, or submit to any part of the Service, including the rights of integrity and attribution. However, you waive these rights and agree not to assert them against us, to enable us to reasonably exercise the rights granted in Section D.4, but not otherwise. You understand that you will not receive any payment for any of the rights granted in this Section.

To the extent such an agreement is not enforceable by applicable law, you grant Smarkup a nonexclusive, revocable, worldwide, royalty-free right to (1) use the Content without attribution strictly as necessary to render the Website and provide the Service; and (2) make reasonable adaptations of the Content as provided in this Section. We need these rights to allow basic functions like search to work.

8. Private Documents

Private documents allow the User to control access to Content. Smarkup employees only access private documents when access is required for security or maintenance or for support reasons, and then only with the consent of the document owner. Because we respect your privacy in private documents, you must respect the Terms of Service in everything you post to a private document. If we have reason to believe the contents of a private document are in violation of the law or of these Terms, we have the right to remove them.

E. Copyright Infringement and DMCA Policy

If you believe that content on our website violates your copyright, please contact us in accordance with our Digital Millennium Copyright Act Policy. If you are a copyright owner and you believe that content on Smarkup violates your rights, please contact us by emailing support@smarkup.com. There may be legal consequences for sending a false or frivolous takedown notice. Before sending a takedown request, you must consider legal uses such as fair use and licensed uses.

We will terminate the accounts of repeat infringers of this policy.

F. Intellectual Property Notice

Short version: We own the service and all of our content. In order for you to use our content, we give you certain rights to it, but you may only use our content in the way we have allowed.

1. Smarkup’s Rights to Content

Smarkup and our licensors, vendors, agents, and/or our content providers retain ownership of all intellectual property rights of any kind related to the Website and Service. We reserve all rights that are not expressly granted to you under this Agreement or by law. The look and feel of the Website and Service is copyright © Smarkup Limited. All rights reserved. You may not duplicate, copy, or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts without express written permission from Smarkup.

2. License to Smarkup Policies

This Agreement is licensed under the Creative Commons Attribution license. You may use it freely under the terms of the Creative Commons license.

G. API Terms

Short version: You agree to these Terms of Service, plus this Section G, when using any of Smarkup’s APIs (Application Provider Interface), including use of the API through a third party product that accesses Smarkup.

1. Limitation of Liability for API Use

You understand and agree that Smarkup is not liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for loss of profits, goodwill, use, data or other intangible losses (even if Smarkup has been advised of the possibility of such damages), resulting from your use of the API or third-party products that access data via the API.

2. No Abuse or Overuse of the API

Abuse or excessively frequent requests to Smarkup via the API may result in the temporary or permanent suspension of your account’s access to the API. Smarkup, in our sole discretion, will determine abuse or excessive usage of the API. We will make a reasonable attempt to warn you via email prior to suspension.

You may not share API tokens to exceed Smarkup’s rate limitations.

You may not use the API to download data or Content from Smarkup for spamming purposes, including for the purposes of selling Smarkup users’ personal information, such as to recruiters, headhunters, and job boards.

All use of the Smarkup API is subject to these Terms of Service and the Smarkup Privacy Statement.

Smarkup may offer subscription-based access to our API for those Users who require high-throughput access or access that would result in resale of Smarkup’s Service.

3. Smarkup May Terminate Your Use of the API

We reserve the right at any time to modify or discontinue, temporarily or permanently, your access to the API or any part of it with or without notice.

H. Additional Terms for Smarkup Pages and Workspaces

Short version: The Smarkup Pages hosting service is subject to certain rules, in addition to the rest of the Terms.

Each Smarkup workspace comes with access to the Smarkup Pages static hosting service. This hosting service is intended to host documents as static web pages for Smarkup users. Smarkup Pages are subject to some specific bandwidth and usage limits, and may not be appropriate for some high-bandwidth uses.

Smarkup reserves the right at all times to reclaim any Smarkup subdomain without liability.

Usage limits

Smarkup Pages sites are subject to the following usage limits:

  • Smarkup Pages source documents have a recommended limit of 1GB.
  • Published Smarkup Pages sites may be no larger than 1 GB.
  • Smarkup Pages sites have a soft bandwidth limit of 100GB per month.
  • Smarkup Pages sites have a soft limit of 10 builds per hour.

If your site exceeds these usage quotas, we may not be able to serve your site, or you may receive a polite email from Smarkup Support suggesting strategies for reducing your site’s impact on our servers, including putting a third-party content distribution network (CDN) in front of your site, making use of other Smarkup features, such as releases, or moving to a different hosting service that might better fit your needs.

Additionally, Smarkup Pages sites must refrain from:

  • Content or activity that is illegal or otherwise prohibited by these Terms of Service
  • Violent or threatening content or activity
  • Excessive automated bulk activity (for example, spamming)
  • Activity that compromises Smarkup users or Smarkup services
  • Get-rich-quick schemes
  • Sexually obscene content
  • Content that misrepresents your identity or site purpose

I. Advertising on Smarkup

Short version: We do not generally prohibit use of Smarkup for advertising. However, we expect our users to follow certain limitations, so Smarkup does not become a spam haven. No one wants that.

1. Smarkup Pages

We offer Pages sites primarily as a showcase or a knowledge base for personal and organizational projects. Some monetization efforts are permitted on Pages, such as donation buttons and crowdfunding links.

2. Smarkup Documents

Smarkup documents are intended to host Content.

You may not advertise in other Users’ documents, such as by posting monetized or excessive bulk content.

3. Spamming and Inappropriate Use of Smarkup

Advertising Content, like all Content, must not violate the law or these Terms of Use, for example through excessive bulk activity such as spamming. We reserve the right to remove any advertisements that, in our sole discretion, violate any Smarkup terms or policies.

J. Payment

Short version: You are responsible for any fees associated with your use of Smarkup. We are responsible for communicating those fees to you clearly and accurately, and letting you know well in advance if those prices change.

1. Pricing

Our pricing and payment terms are available at smarkup.com/pricing.

2. Upgrades, Downgrades, and Changes

  • We will immediately bill you when you upgrade from the free plan to any paying plan.
  • If you upgrade to a higher level of service, we will bill you for the upgraded plan immediately.

3. Billing Schedule; No Refunds

  • For monthly or yearly payment plans, the Service is billed in advance on a monthly or yearly basis respectively and is non-refundable. There will be no refunds or credits for partial months of service, downgrade refunds, or refunds for months unused with an open account; however, the service will remain active for the length of the paid billing period.
  • In order to treat everyone equally, no exceptions will be made.

4. Authorization

By agreeing to these Terms, you are giving us permission to charge your on-file credit card, PayPal account, or other approved methods of payment for fees that you authorize for Smarkup.

5. Responsibility for Payment

You are responsible for all fees, including taxes, associated with your use of the Service. By using the Service, you agree to pay Smarkup any charge incurred in connection with your use of the Service. If you dispute the matter, contact Smarkup Support. You are responsible for providing us with a valid means of payment for paid accounts. Free accounts are not required to provide payment information.

K. Cancellation and Termination

Short version: You may close your account at any time. If you do, we’ll treat your information responsibly.

1. Account Cancellation

It is your responsibility to properly cancel your account with Smarkup. You can cancel your account at any time by going into your Account Settings. The Account screen provides a simple, no questions asked cancellation link. We are not able to cancel accounts in response to an email or phone request.

2. Upon Cancellation

We will retain and use your information as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements, but barring legal requirements, we will delete your full profile and the Content of your documents within 90 days of cancellation or termination (though some information may remain in encrypted backups). This information can not be recovered once your account is cancelled.

We will not delete Content that you have contributed to other Users’ documents or that other Users have forked.

Upon request, we will make a reasonable effort to provide an account owner with a copy of your lawful, non-infringing account contents after account cancellation, termination, or downgrade. You must make this request within 90 days of cancellation, termination, or downgrade.

3. Smarkup May Terminate

Smarkup has the right to suspend or terminate your access to all or any part of the Website at any time, with or without cause, with or without notice, effective immediately. Smarkup reserves the right to refuse service to anyone for any reason at any time.

4. Survival

All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.

L. Communications with Smarkup

Short version: We use email and other electronic means to stay in touch with our users.

1. Electronic Communication Required

For contractual purposes, you (1) consent to receive communications from us in an electronic form via the email address you have submitted or via the Service; and (2) agree that all Terms of Service, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that those communications would satisfy if they were on paper. This section does not affect your non-waivable rights.

2. Legal Notice to Smarkup Must Be in Writing

Communications made through email or Smarkup Support’s messaging system will not constitute legal notice to Smarkup or any of its officers, employees, agents or representatives in any situation where notice to Smarkup is required by contract or any law or regulation. Legal notice to Smarkup must be in writing and served on Smarkup’s legal agent: Smarkup Limited, 16 South Main Street, Naas, Co. Kildare, Republic of Ireland.

You may also send a courtesy copy to support@smarkup.com.

Please make your requests as specific and narrow as possible, including the following information:

  • Full information about authority issuing the request for information
  • The name and badge/ID of the responsible agent
  • An official email address and contact phone number
  • The user, organization, repository name(s) of interest
  • The URLs of any pages or files of interest
  • The description of the types of records you need

Please allow a reasonable time period for us to be able to look into your request.

As an Irish company, Smarkup is not required to provide data to foreign governments in response to legal process issued by foreign authorities.

3. No Phone Support

Smarkup only offers support via email. We do not offer telephone support.

M. Disclaimer of Warranties

Short version: We provide our service as is, and we make no promises or guarantees about this service. Please read this section carefully; you should understand what to expect.

Smarkup provides the Website and the Service “as is” and “as available,” without warranty of any kind. Without limiting this, we expressly disclaim all warranties, whether express, implied or statutory, regarding the Website and the Service including without limitation any warranty of merchantability, fitness for a particular purpose, title, security, accuracy and non-infringement.

Smarkup does not warrant that the Service will meet your requirements; that the Service will be uninterrupted, timely, secure, or error-free; that the information provided through the Service is accurate, reliable or correct; that any defects or errors will be corrected; that the Service will be available at any particular time or location; or that the Service is free of viruses or other harmful components. You assume full responsibility and risk of loss resulting from your downloading and/or use of files, information, content or other material obtained from the Service.

N. Limitation of Liability

Short version: We will not be liable for damages or losses arising from your use or inability to use the service or otherwise arising under this agreement. Please read this section carefully; it limits our obligations to you.

You understand and agree that we will not be liable to you or any third party for any loss of profits, use, goodwill, or data, or for any incidental, indirect, special, consequential or exemplary damages, however arising, that result from

  • the use, disclosure, or display of your User-Generated Content;
  • your use or inability to use the Service;
  • any modification, price change, suspension or discontinuance of the Service;
  • the Service generally or the software or systems that make the Service available;
  • unauthorized access to or alterations of your transmissions or data;
  • statements or conduct of any third party on the Service;
  • any other user interactions that you input or receive through your use of the Service; or
  • any other matter relating to the Service.

Our liability is limited whether or not we have been informed of the possibility of such damages, and even if a remedy set forth in this Agreement is found to have failed of its essential purpose. We will have no liability for any failure or delay due to matters beyond our reasonable control.

O. Release and Indemnification

Short version: You are responsible for your use of the service. If you harm someone else or get into a dispute with someone else, we will not be involved.

If you have a dispute with one or more Users, you agree to release Smarkup from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.

You agree to indemnify us, defend us, and hold us harmless from and against any and all claims, liabilities, and expenses, including attorneys’ fees, arising out of your use of the Website and the Service, including but not limited to your violation of this Agreement, provided that Smarkup (1) promptly gives you written notice of the claim, demand, suit or proceeding; (2) gives you sole control of the defense and settlement of the claim, demand, suit or proceeding (provided that you may not settle any claim, demand, suit or proceeding unless the settlement unconditionally releases Smarkup of all liability); and (3) provides to you all reasonable assistance, at your expense.

P. Changes to These Terms

Short version: We want our users to be informed of important changes to our terms, but some changes aren’t that important — we don’t want to bother you every time we fix a typo. So while we may modify this agreement at any time, we will notify users of any changes that affect your rights and give you time to adjust to them.

We reserve the right, at our sole discretion, to amend these Terms of Service at any time and will update these Terms of Service in the event of any such amendments. We will notify our Users of material changes to this Agreement, such as price changes, at least 30 days prior to the change taking effect by posting a notice on our Website. For non-material modifications, your continued use of the Website constitutes agreement to our revisions of these Terms of Service.

We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website (or any part of it) with or without notice.

Q. Miscellaneous

1. Governing Law

This Agreement shall be governed by and construed in accordance with the laws applicable in the Republic of Ireland. The courts of Ireland have exclusive jurisdiction to hear and decide any suit, action or proceedings and to settle any disputes which may arise out of or in connection with this Agreement and, for these purposes, you and Smarkup irrevocably submit to the jurisdiction of the courts of Ireland. This Agreement is expressly made subject to any regulations, orders or other restrictions on the export from Ireland of the Services, or information about the Services, which may be imposed from time to time by the government of Ireland.

2. Non-Assignability

Smarkup may assign or delegate these Terms of Service and/or the Smarkup Privacy Statement, in whole or in part, to any person or entity at any time with or without your consent, including the license grant in Section D.4. You may not assign or delegate any rights or obligations under the Terms of Service or Privacy Statement without our prior written consent, and any unauthorized assignment and delegation by you is void.

3. Section Headings and Summaries

Throughout this Agreement, each section includes titles and brief summaries of the following terms and conditions. These section titles and brief summaries are not legally binding.

4. Severability, No Waiver, and Survival

If any part of this Agreement is held invalid or unenforceable, that portion of the Agreement will be construed to reflect the parties’ original intent. The remaining portions will remain in full force and effect. Any failure on the part of Smarkup to enforce any provision of this Agreement will not be considered a waiver of our right to enforce such provision. Our rights under this Agreement will survive any termination of this Agreement.

5. Complete Agreement

These Terms of Service, together with the Smarkup Privacy Statement, represent the complete and exclusive statement of the agreement between you and us. This Agreement supersedes any proposal or prior agreement oral or written, and any other communications between you and Smarkup relating to the subject matter of these terms.