Outsmart Brands Terms of Service


Effective Date:  June 23, 2017


THIS IS A LEGALLY BINDING AGREEMENT THAT AFFECTS YOUR RIGHTS AND LIMITS OUR LIABILITY.  PLEASE READ IT CAREFULLY. BY USING OUR SITE, YOU ARE CONFIRMING YOUR AGREEMENT WITH THESE TERMS.  IF YOU DO NOT AGREE TO THE TERMS DESCRIBED HEREIN, YOU MUST LEAVE OUR SITE IMMEDIATELY.

This Terms of Service Agreement (“Terms of Service”) is a legal agreement between you and West Winds, LLC doing business as OutsmartBrands.com (“OutsmartBrands,” “we” or “us”), and governs how you may use our website (“Site”) and any additional websites or mobile or desktop applications we may develop following the effective date of these Terms of Service.  When you browse our Site, you are confirming your understanding of and agreement with these Terms of Service.   For all questions about how we use the information we obtain through your use of the Site, please review our Privacy Policy. By using the Site, you agree to also be bound to the Privacy Policy, the terms of which are incorporated herein by this reference. Any rights not expressly granted herein are expressly reserved by OutsmartBrands.

NOTE:  THIS SITE IS NOT INTENDED FOR USE BY CHILDREN UNDER THE AGE OF 13.  By using this site, you are confirming that you are above the age of 13.

1.  Site Description.  OutsmartBrands.com is a lifestyle site that offers information, recommendations, reviews, articles, and purchase guides about unique products available through third parties, all written copy, images, audio or video recordings, and any other information on this Site shall henceforth be referred to as “Content”).   This Site is for entertainment purposes only, and any Content published on this Site (including any advice, guidance, comments, or recommendations) is provided solely for that purpose.

The Site may from time to time include Content concerning medical or health-related information, products, or services. However, we do not provide medical advice. Always consult a medical or health professional before adopting any suggestion contained in, drawing any inference from or taking any other action in reliance on any Content that addresses medical or health issues.  Be sure to follow the manufacturer’s directions and comply with the advice of your medical or health professional when using any medical or health-related service, device, product, or medication or undertaking any health-related activities or program. We are not responsible for any adverse consequences of any medical or health decision or the use of any medical or health-related product or service.

NOTE: Product information included in any Content or articles (including but not limited to product recommendations and reviews) represent our opinions, and may be based solely on online research, and not on our personal experience using the product or service.

2. Affiliate Relationships.  We maintain marketing affiliate relationships with many of the sellers whose products may be featured and reviewed on this Site, in our email newsletters social media posts, and any other method or manner of publication we choose.  If you elect to purchase any products or services from those companies, we will receive compensation for having referred them to you.  When such a relationship exists and is not obvious, it will be mentioned in the article discussing the product, for example in the footer. We offer no guarantees that any product descriptions, pricing, or any other information about a product or service discussed on this Site, regardless of its source, is accurate, complete, reliable, current, or error-free.  Site Content is provided for informational and entertainment purposes only and does not constitute an endorsement by OutsmartBrands of any participating retailer.  OutsmartBrands assumes no liability for inaccuracy or incompleteness of any Content on the Site or in any communications from us.

3. Trademark & Copyright.  The trademarks, service marks, logos, and all written Content  (collectively, "Protected Content") used and displayed on this Site are registered and unregistered marks of OutsmartBrands and others, or are otherwise protected by copyright laws. Nothing on this website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark without our prior, written permission.

OutsmartBrands hereby grants you a non-exclusive, non-transferable, revocable, limited license to access and use the Site under the terms set forth below.  The Site and the Content, including, but not limited to, text, data, reports, opinions, software (including HTML-based computer programs), images, photos, graphics, graphs, charts, animations and video displayed on the Site may be used only for your personal and non-commercial use. Except as otherwise permitted under these Terms of Service, you agree not to copy, reproduce, modify, create derivative works from, or store any Content, in whole or in part, from the Site or to display, perform, publish, distribute, transmit, broadcast or circulate any Content to anyone, or for any commercial purpose, without the express prior written consent of OutsmartBrands.  If you do choose to post a review, or to provide any other Content for publication on our Site (including, but not limited to, testimonials and endorsements), you agree that we may copy, distribute, display, publish, modify or translate your Content for any purpose and in any medium worldwide without any obligation to compensate you or any other third party in any way for any such use.  Such license that you are granting is royalty-free, perpetual, irrevocable and fully sub-licensable.  

4. Termination of License. OutsmartBrands reserves the right to terminate the License granted herein and deny you access to the Service (or any portion of the Site) in its sole discretion, without any advance notice or liability to you and liability if it believes your conduct fails to conform with these Terms of Service. OutsmartBrands also reserves the right to investigate suspected violations of these Terms of Service, including, without limitation, any violation arising from any e-mails you send to OutsmartBrands. Any violation of these Terms of Service may be referred to law enforcement authorities.  The termination of your License and account will not affect any additional right or relief to which OutsmartBrands may be entitled, at law or in equity. Upon termination of these Terms, all rights granted to you will automatically terminate and immediately revert to OutsmartBrands.

5.  General Prohibitions. You may not do any of the following:

(a) Copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code of the Site;

(b)  Remove or obscure the copyright notice or other notices displayed in connection with the Content accessible through the Site;

(c)  Interfere with or disrupt the Site, or servers and networks connected to the Site, or circumvent, disable or otherwise interfere with security-related features of the Site or features that prevent or restrict use or copying of any Content or that enforce limitations on use of the Site;

(d)  Modify the Site in any manner or form, or use modified versions thereof;

(e)   Sell, assign, sublicense, or otherwise transfer any right in the Content accessible through the website,

(f)  Use any robot, spider, scraper, or other automated means to access the Service for any purpose;

(g)  Take any action that imposes or may impose an unreasonable or disproportionately large load on the OutsmartBrands infrastructure as we may determine in our sole discretion;

(h)  Knowingly disseminate or transmit any worms, viruses or other harmful, disruptive or destructive files, code, programs or other similar technologies, or otherwise utilize the Service in any manner that violates any statute, rule, or regulation; or

(i) Violate any of the Usage Guidelines listed in the next section.

6. Usage Guidelines.  When using the Site, you agree to comply with the following guidelines, and to not use the Site to:

(a)   Post any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, hateful, degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification or otherwise objectionable in any way or for any reason, according to our sole and absolute discretion;

(b) Harm, threaten, or otherwise harass any other person or entity;

(c)   Post any unsolicited or unauthorized advertising or promotional materials, including (but not limited to) links to third party websites in comments or posts;

(d)   Disseminate or transmit any Content that (i) violates any law (whether local, state, national, or international), (ii) infringes or violates any copyright, trademark, trade secret, patent or any other proprietary right (including, but not limited to, using third party copyrighted materials or trademarks without appropriate permission or attribution), or (iii) includes third party information (whether or not protected as a trade secret) in violation of a duty of confidentiality;

(e)   Disseminate or transmit any worms, viruses or other harmful, disruptive or destructive files, code, programs or other similar technologies; or post any material that contains software viruses or any other computer code, files, programs or other similar technologies designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;

(f) Post any Content that would violate the personal privacy rights of others, including but not limited to revealing personal or private information about others without their permission;

(g) Impersonate any other person or entity; or

(h)   Facilitate violations of these Terms of Service or our Privacy Policy.

7. Advertisements and Links. The Site contains advertisements, offers, or other links to websites of third parties that we do not control. Any outbound links are provided solely for your reference, and are not to be viewed as an authorization, endorsement, sponsorship, or affiliation by, of, or with such website.  Note that advertisements and other information provided by third parties may not be wholly accurate, and OutsmartBrands makes no representations whatsoever concerning such websites, or any products or services they may offer, and hereby disclaims any and all such representations.  Any purchase transactions or other dealings with third parties referenced on this Site, including payment and delivery of purchased items, are solely between yourself and them.  We are not responsible or liable for (i) the availability or accuracy of such websites or advertisements; or (ii) the Content, products or services available from such sites. ANY VISITS TO WEBSITES THAT LINK TO OR ADVERTISE ON THIS SITE ARE AT YOUR OWN RISK.

8. No Warranty. THE SITE IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND. OUTSMARTBRANDS MAKES NO GUARANTEES OR WARRANTIES AS TO THE ACCURACY, COMPLETENESS, TIMELINESS OR CURRENTNESS OF ANY INFORMATION DISPLAYED ON THE SITE, AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WE DO NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE CONTENT OR COMMUNICATIONS IN THE SITE IN TERMS OF THEIR COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE.

Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you.  

9. Limitation of Liability & Release.  In no event shall OutsmartBrands be liable to you or any other party for any direct, indirect, special, incidental, consequential, exemplary, or punitive damages, however and wherever arising, that may result from your use of the Site, including without limitation to losses incurred due to: (a) any inaccurate information published on the site or any site accessible via an advertisement or link; (b) your business dealings with any third party advertisers or marketing affiliates that link to this site; (c) damages or losses of any kind, including, without limitation, injuries or death, resulting from your purchase and use of any products purchased from marketing affiliates or advertisers; (d) any actions you take in reliance upon any information provided by the Site; and (g) any other damages or losses you may incur in connection with your use of the Site.  IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED TEN UNITED STATES DOLLARS ($100.00).

OutsmartBrands is not responsible for examining or evaluating the business practices, actions, omissions, or services of marketing affiliates, advertisers, companies, and third parties whose information, products, or services are featured on this Site. IN THE EVENT OF A DISPUTE BETWEEN YOU AND A MARKETING AFFILIATE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU RELEASE OUTSMARTBRANDS, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND LEGAL REPRESENTATIVES FROM AND AGAINST CLAIMS AND DAMAGES OF ANY KIND, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH A DISPUTE.
 
If you are a California resident, by using the Site, you explicitly waive the rights granted to you under California Civil Code 1542, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."  If you are a New Jersey resident, certain sections of these Terms of Service, including Sections 5, 6, and 7 may not apply to you pursuant to the New Jersey Truth in Consumer Contract, Warranty, and Notice Act.  Additional states may not allow this exclusion or limitation of liability, so the above limitation or exclusion may not apply to you.

10. Indemnification.  BY USING THE SITE, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS OUTSMARTBRANDS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, AND SERVICE OR CONTENT PROVIDERS FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS, ARISING OR RESULTING FROM YOUR USE OF THE SITE AND ANY VIOLATION OF THESE TERMS OF USE. IF YOU CAUSE A TECHNICAL DISRUPTION OF THE SITE OR THE SYSTEMS TRANSMITTING THE SITE TO YOU OR OTHERS, YOU AGREE TO BE RESPONSIBLE FOR ANY AND ALL LOSSES, LIABILITIES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES AND COURT COSTS, ARISING OR RESULTING FROM THAT DISRUPTION.

11. Copyright.  All information and Content on this website (“Content”) and any intellectual property rights embodied therein are the property of OutsmartBrands (in the case of products discussed herein) or the manufacturers or sellers or those products.  Unless otherwise stated herein, none of the Content may be copied, reproduced, modified, distributed, sold, broadcast, stored or otherwise used without the express permission of OutsmartBrands or the original copyright holder. You may display and print Content available on this website solely for your personal, non-commercial use, provided that you do not modify the Content and that you retain all copyright and other proprietary notices contained in the Content. Unauthorized use of Content contained on this site is expressly prohibited by law, and may result in severe civil and criminal penalties.

OutsmartBrands encourages you to report any Content on the Site that you believe infringes your rights.  Only the intellectual property rights owner or person authorized to act on behalf of the owner can report potentially infringing Content. If you have a good faith belief that Content on the Site infringes your copyright, trademark, or other intellectual property rights, please follow send a written notice bearing your signature to our Copyright Agent that specifically describes the nature and location of the Content you believe to be infringing.  Under the U.S. Digital Millennium Copyright Act, our designated copyright agent for notice of alleged copyright infringement appearing on the Site is:

West Winds LLC
Attention: Copyright Agent
P.O. Box 760758
Melrose, MA 02176

Any notices or other communications regarding copyright infringement that are sent in any manner other than as described above, or that are not relevant to copyright infringement, will receive no response.  We reserve the right to remove any Content alleged to be infringing without prior notice, at our sole discretion, and without liability to you, and/or to terminate your account if it is determined that you knowingly posted infringing Content.  

12. Choice of Law; Forum. This document shall be governed in all respects by the laws of the United States and the State of Massachusetts, regardless of conflict of law rules. Any claim or dispute you may have against us, whether subject to mandatory arbitration or otherwise, must be brought in Boston, MA, except that arbitration proceedings may be conducted by telephone.  For any matters not subject to mandatory arbitration, you agree to submit to the personal jurisdiction of the courts located within Middlesex County, MA for the purpose of litigating all such claims or disputes.

All claims filed or brought contrary to this section shall be considered improperly filed. Should you file a claim improperly, we may recover reasonable attorneys’ fees and costs, provided that we have notified you in writing of the improperly filed claim and you have failed to withdraw the claim promptly.

13. Arbitration Agreement and Class Action Waiver. You agree to arbitrate all disputes and claims that arise out of or relate to your use of the Service. Therefore, you agree that, by using the Service, YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION BASED ON OR INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC, OTHER USERS, OR PERSONS SIMILARLY SITUATED. This agreement to arbitrate includes, without limitation, claims arising out of or relating to the Service or your use thereof, regardless of when they may arise.  Any arbitration proceeding brought under this section shall be conducted by an arbitration service provider chosen by OutsmartBrands applying Massachusetts law.  The arbitration may be conducted telephonically, with the costs to be split evenly between the parties.

14. Limitation of Actions.  Any claim or cause of action arising out of your use of the Site or Service must be filed within one year after such claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary. Within this period, any failure by OutsmartBrands to enforce or exercise any provision of these Terms of Service or any related right shall not constitute a waiver of that right or provision.

15. Modification and Notice of Changes.  OutsmartBrands reserves the right to modify these Terms of Service at any time.  If we elect to modify these Terms, we will post a notice informing users of the change on the Site.  You are responsible for reviewing the modified Terms of Service, and accessing this Site after any changes to these Terms have been posted thereon will constitute your acceptance of all such changes. You have the right to accept or reject any changes in these Terms. If you reject any changes in these Terms, please discontinue use of the Site immediately. Unless specifically stated otherwise, any new features, products or services added to the Site shall be subject to these Terms. Some new products or features may require your acceptance of new or additional terms before use.

16. Entire Agreement. This Terms of Service and any document incorporated by reference herein constitute the entire agreement between you and us and govern your use of the Service, superseding any prior agreements between us.

17. Severability. If any provision of these Terms of Service is found by a court or other binding authority to be invalid, the remaining provisions shall continue in full force and effect.

If you have any questions or concerns regarding these Terms of Service, please contact us.

West Winds LLC
P.O. Box 760758
Melrose, MA 02176