Terms Of Use

ThisorThat.com is a website that provides a forum for certain members of the public to comment on, criticize and provide opinions about news, politics, current events, public figures and other topics of public interest.

The following is a legal agreement that governs use of the ThisorThat.com website (the "Website"), which is owned and operated by SoMuchSmoke Inc. ("SMS"). Agreement to all terms and conditions in this document and other incorporated rules and policies, including but not limited to the Privacy Policy (hereinafter collectively referred to as the "Agreement") is required to access or use the Website. If you do not agree to all terms and provisions in the Agreement, you are not authorized to access or use the Website.

Please read this document and other incorporated policies carefully before accessing and using any part of the Website.

1
Your Acceptance of the Agreement by Use

You agree to be bound by the Agreement if you access or use any part of the Website at any time whether or not you create an account and become a "Registered User." You also agree to have the Agreement provided to you in electronic format and agree to receive information electronically.

2
Consent to Changes to the Agreement

SMS may modify the terms and conditions of this Agreement from time to time, which changes will be effective upon posting. Your continued use of the Website after posting of the changes means that you understand and agree to the changes. Therefore, it is important that you review the posted Terms of Use regularly to ensure that you are aware of and in compliance with the current Terms of Use. If you do not consent to the new Agreement, you are not authorized to access or use the Website and must cease access and use of the Website.

3
Your Warranty

You represent, warrant, and covenant that: (i) you have the legal capacity and authority to enter into this Agreement; (ii) all statements about your personal information are current, true and accurate; (iii) you will update your personal information if it becomes inaccurate; (iv) you will use the Website and other services in strict accordance with this Agreement and all applicable city, state, and federal government laws, regulations, and ordinances; (v) you will not infringe or misappropriate the intellectual property rights of SMS or other third parties; and (vi) you will not make material misrepresentations of fact or defamatory statements about people, services, products or goods.

4
User Registration

For full access to the Website's Services and the ability to submit comments and upload content onto the Website, you must set up an account and become a "Registered User." To be eligible to register you must be (1) 18 or older at the time of registration or over the age of 13 with the express permission of your parent or legal guardian; and (2) mentally competent to agree to the Agreement and comply with its terms and conditions.

When setting up your account, you must fill in all mandatory fields with true, accurate, complete and current information about yourself. You must also promptly update your personal account information if it becomes inaccurate or misleading in any way. SMS may suspend or terminate your account if it in its sole discretion suspects that your information is incomplete, inaccurate or untrue.

Registration and use of the Website if void where prohibited.

5
Intellectual Property

The Website contains logos, graphics, trademarks and service marks and other content that are owned by SMS and other third parties. The Agreement does not give you the right to use, display, copy, or reproduce in any way any of these logos, marks, or graphics. This Agreement does not transfer to you any intellectual property or other proprietary rights. SMS maintains all right, title and interest to its intellectual property and other content.

6
Registered User Passwords

When you become a Registered User of the Website, you will be required to select a password. You are responsible for the security and integrity of your password. You must keep your password confidential and agree not share or give your password to any other person or allow another person access to your account. You are responsible for all activities that occur under your account.

You also agree to notify SMS immediately if you believe that the security of your password and account has been breached or that another person has used or accessed your account.

You also agree not to use the password, username, or account of another Registered User.

7
Registered User Content

As a Registered User, you will be allowed to add, upload, post, transmit and store limited types of content on the Website ("Your User Content").

You are solely responsible for all the information, statements, facts and material of Your User Content.

In connection with Your User Content you represent and warrant that: (1) you own Your User Content or that you have the right to grant the license set forth in this Section; (2) your posting of Your User Content does not violate the copyrights, contract rights, publicity rights, privacy rights or any other legal rights of any person or entity; (3) you will not post any information or material that is prohibited in Section 9.

SMS does not guarantee that it will post, publish, maintain or store Your User Content on the Website. You understand and agree that SMS may at any time review, monitor, use or disclose Your User Content posted or transmitted by, to or from you on the Website. You also understand and agree that SMS may use or disclose any information related to you including but not limited to Your User Content for any reason related to the operation of the Website in order to investigate, prevent, or take action regarding any prohibited User Content or Conduct and to exercise its rights under this Agreement or otherwise to protect the rights and property of other third parties.

SMS may prevent any Registered User for any reason the access to post User Content on the Website in its sole discretion. SMS at its sole discretion may also remove any content, including but not limited to Your User Content, for any reason at any time without notice. SMS does not have any obligation to keep User Content confidential for any reason.

8
User Content License

SMS does not claim to own Your User Content. However, by posting, adding, uploading, transmitting, communicating or storing Your User Content on the Website, you agree to and hereby grant SMS, its successors and assigns, and the operators of the Website a world-wide, royalty-free, non-exclusive, irrevocable, perpetual, transferable, and sub-licensable license to copy, reproduce, use, edit, modify or make derivative works and to incorporate the work into other works and to sub-license the work to third parties and publish, distribute, transmit, publicly perform, publicly display, Your User Content on the Website and in any media formats and through any media channels now known or later developed. You also agree to hereby grant each Website user a non-exclusive license to access Your User Content through the Website and to copy, reproduce, distribute, use, comment on, prepare derivative works of, publicly perform, publicly display your User Content as permitted through the functionality of the Website and as otherwise permitted by SMS.

The Website contains User Content from other licensors. You may not copy, modify, publish, broadcast, transmit, distribute, perform, display or sell any other User Content that appears on the Website outside of your use of the Website and its services.

9
Prohibited User Content

SMS does not represent or warrant that it will monitor the content on the Website.

The following is a list of examples of User Content that is prohibited on the Website. You are responsible for determining whether Your User Content is prohibited. At its discretion, SMS may investigate anyone who posts User Content in violation of this provision and take appropriate action, which may include removing the content, terminating access to the Website, or taking legal action.

Prohibited User Content, includes but is not limited to, content that SMS, in its sole discretion, believes is:

  1. inaccurate, false, misleading, or fraudulent;
  2. harassing, intimidating, abusive, defamatory, libelous, threatening, hateful, or offensive;
  3. profane, vulgar, or obscene;
  4. violent or threatening;
  5. spam, junk mail, chain letters, surveys, schemes, contests or unsolicited advertising;
  6. illegal, criminal, or tortious;
  7. commercial, and
  8. infringing another's copyrights, trademarks, service marks, trade secrets or rights of publicity, privacy or any other third party rights.
10
Prohibited User Conduct

The following conduct is prohibited while using the Website. At its discretion, SMS may investigate alleged conduct that violates this provision and it may terminate your access and use of the Website or take appropriate legal action. Prohibited conduct includes but is not limited to:

  1. harassment, stalking, threats, intimidation, verbal or physical abuse, and coercion;
  2. impersonating another person or entity;
  3. deleting, modifying, attempting to modify information that is posted by SMS or any other Registered User;
  4. posting, transmitting or using private information or photographs of another person or entity without their consent;
  5. using or attempting to use another person's account or personal information;
  6. advertising or soliciting other Users for commercial services;
  7. interfering with the operation or services of the Website in any way;
  8. unauthorized framing or linking of the Website or portions thereof;
  9. damaging, disabling, circumventing or attempting to circumvent security technology, devices and programs associated with the Website or associated services;
  10. using the Website in a way that would impair or damage the operation of the Website;
  11. take any action that would place an unreasonable load on the Website's infrastructure;
  12. attempt to decompile, decipher, disassemble or reverse-engineer any of the software comprising or in any way making up a part of the Website;
  13. collecting or harvesting information with automated programs including but not limited to using spiders, robots, harvesting bots or scrapers; and
  14. uploading any viruses, worms, Trojan horses, time bombs or other destructive programs or devices that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any data, information or system.
11
DMCA Notice and Takedown Procedure

SMS respects the intellectual property rights of others and expects Registered Users to do likewise. SMS complies with the provisions of the Digital Millennium Copyright Act ("DMCA") and responds to allegations of copyright infringement in notices that comply with the provisions of the DMCA. As part of our DMCA compliance, we may take down, remove or disable access to allegedly infringing Website content. Then, pursuant to the DMCA, we will make a good-faith attempt to contact the Website Registered User who posted the content to allow them to make a counter notification.

SMS has established a Designated Agent with the US Copyright Office. The contact information for our Designated Agent is:

Rebecca Kelley
copyright@thisorhat.com
10940 S. Parker Rd., Suite 407
Parker, CO 80134-7440

If you are a copyright owner or agent of a copyright owner and believe that any content on the Website infringes your copyrights, you may request that such content be removed from the Website by submitting a notification pursuant to the DMCA.

To request removal of any content that you believe infringes your copyright, please send a written notice ("Notice") to our Designated Agent:

By Mail:

DMCA Designated Agent: Rebecca Kelley

SoMuchSmoke Inc.
10940 S. Parker Rd., Suite 407
Parker, CO 80134-7440

By Email:
copyright@thisorthat.com

Your written Notice must contain all of the following information:

  1. Your full name, address, telephone number, and email address;
  2. A description of all copyrighted works claimed to be infringed sufficient for identification of the works;
  3. A description of where the works claimed to be infringed are located on the Website including a link to the works;
  4. Your statement that you have a good faith belief that use of the works in the manner complained of is not authorized by the copyright owner, its agent or the law;
  5. A statement under penalty of perjury that the information you have provided in your Notice is accurate and that you are the copyright owner or that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
  6. Your physical or electronic signature.

You understand and acknowledge that if your Notice does not comply with all of the above requirements, your DMCA Notice may not be valid. Also, note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

Content posted by Registered Users is the responsibility of the User and not SMS.

12
DMCA Counter-Notification

If you believe that Your User Content has been erroneously removed because it was improperly identified as violating a copyright, you may send us a counter notice to have your User Content re-posted ("Counter Notice").

If you choose to send a Counter Notice, you must send a written Counter Notice to our Designated Agent at:

By Mail:

DMCA Designated Agent: Rebecca Kelley

SoMuchSmoke Inc.
10940 S. Parker Rd., Suite 407
Parker, CO 80134-7440

By Email:
copyright@thisorthat.com

Your written Counter Notice must contain all of the following information:

  1. Your full name, address, telephone number, and email address;
  2. Identification of Your User Content that has been removed or to which access has been disabled and the location at which Your User Content appeared before it was removed or access to it was disabled;
  3. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
  4. A statement that you consent to jurisdiction of Federal District Court for the judicial district in which you are located (or, if you live outside of the United States, for the Northern District of Colorado), and that you will accept service of process from the person who provided the notification of infringement; and
  5. Your physical or electronic signature.

You understand and acknowledge that if your Counter Notice does not comply with all of the above requirements, your DMCA Counter Notice may not be valid. Also, note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.

SMS will terminate registration of repeat alleged infringers.

13
Privacy Policy

The Website's Privacy Policy is incorporated into this Agreement by reference.

14
DISCLAIMER OF WARRANTIES

USE OF THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE IS PRESENTED "AS IS." SMS DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER RELATED TO THE WEBSITE, LINKED SITES, OR ANY CONTENT THAT AMY BE ACCESSIBLE DIRECTLY OR INDIRECTLY THROUGHT THE WEBSITE.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SMS EXPRESSLY DISCLAIMS REPRESENTATIONS AND WARRANTIES OF ANY AND ALL KIND WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING BUT NOT LIMITED TO: (a) WARRANTIES OF NON-INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS; (b) WARRANTIES OF MERCHANTIABILITY OR FITNESS FOR A PARTICULAR USE OR WARRANTY OF TITLE; (c) WARRANTIES RELATING TO TRANSMISSION OR DELIVERY OF THE WEBSITE OR THAT USE OF THE WEBSITE WILL BE CONTINUOUS OR UNINTERRUPTED OR AVAILABLE AT A PARTICULAR TIME OR IN A PARTICULAR LOCATION; (d) WARRANTIES RELATED TO THE ACCURACY, COMPLETENESS, SAFENESS, RELIABILITY OF THE WEBSITE CONTENT WHETHER POSTED BY SMS, A REGISTERED USER, OR BY SMS EQUIPMENT OR PROGRAMMING ASSOCIATED WITH THE WEBSITE OR ASSOCIATED SERVICES; AND (e) WARRANTIES RELATING TO PERFORMANCE, CORRECTION, CHANGES, NONPERFORMANCE, OR OTHER ACTS OR OMISSIONS BY SMS OR ANY OTHER PERSON OR ENTITY.

SMS DISCLAIMS ANY RESPONSIBILITY FOR ANY ERROR, DELETION, OMISSION, OR DEFECT IN WEBSITE CONTENT OR ITS TRANSMISSION AND FOR DAMAGE TO YOUR COMPUTER OR EQUIPMENT FROM YOUR USE OF THE WEBSITE AND THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO YOUR INFORMATION OR CONTENT.

15
LIMITATION OF LIABILITY

EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, SMS, ITS EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES, AGENTS OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DELIVERING THE WEBSITE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY FOR INDIRECT, DIRECT, INCIDENTAL, CONSEQUENTIAL, LOST PROFITS, LOSS OF REVENUE, INCOME OR ANTICIPATED PROFITS OR SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, (EVEN IF SMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) INCLUDING BUT NOT LIMITED TO DAMAGES ARISING OUT OF OR RELATED TO WEBSITE ACCESS, USE, MISUSE, CONTENT, TRANSMISSION, OPERATION OR WEBSITE USER CONDUCT INCLUDING BUT NOT LIMITED TO DAMAGES RELATED TO PAIN AND SUFFERING, EMOTIONAL DISTRESS, PHYSICAL INJURY OR TRADEMARK, COPYRIGHT OR PATENT INFRINGEMENT AND TRADE SECRET MISAPPROPRIATION.

YOU AGREE TO RELEASE SMS, ITS EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES, AND AGENTS FROM ANY AND ALL CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY DISPUTE WITH ANOTHER USER OF THE WEBSITE.

16
Indemnification

You agree to indemnify, defend and hold harmless SMS and its directors, officers, employees, and agents against any and all claims, demands, or suits brought by any party including but not limited to all expenses, costs, losses, liability, reasonable attorneys' fees and court costs, arising out of or related to your access and use of the Website, including but not limited to a breach of a warranty or covenant of this Agreement or Content that is posted, uploaded, or associated with the Website.

17
Termination

This Agreement will continue to apply until you or SMS terminate it. You may terminate this Agreement at any time by ceasing to access and use the Website.

Your registered use of the Website may be terminated at anytime without prior notice, with or without cause for any reason, including but not limited to SMS' determination that you have breached this Agreement including a violation of a warranty as described in Section 3, uploaded or transmitted content prohibited by Section 9 or engaged in prohibited conduct including but not limited to conduct described in Section 10. Termination of your access and account is at the sole discretion of SMS.

The disclaimer of warranties, the limitation of liability and the jurisdiction and applicable law provisions shall survive any termination of this Agreement.

18
Jurisdiction and Choice of Law

This Agreement and any use of the Website shall be governed by and construed under the laws of the State of Colorado, without regard to its conflict of laws provisions. Any controversy or proceeding arising out of or related to this Agreement shall be brought only in the federal or state court in the State of Colorado. You expressly submit to personal jurisdiction and venue in any Colorado court and will not object to such jurisdiction on the ground of forum non conveniens or otherwise.

19
Assignment

You may not assign this Agreement or delegate its duties. SMS may assign this Agreement (and any license contained in it) to any person or entity without condition.

20
Waiver

No waiver of any term or condition of or any breach of this Agreement or of any part of it, shall be deemed a waiver of any other term or condition or of any later breach of the Agreement or of any part of it.

21
Enforceability

If any provision of this Agreement is found to be unenforceable, void, or unlawful, that provision is severed from this Agreement and does not affect the enforceability and validity of this Agreement or any of the other provision.

22
Entire Agreement

This Agreement constitutes the complete agreement between the parties and supersedes all other agreements, promises, representations, and negotiations, whether written or oral, between the parties regarding the subject matter of the Agreement.

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