Terms & Conditions of Use

By using SMS Web site, you signify your agreement to all of these Terms and Conditions. Do not use our site if you are not in agreement with all Terms and Conditions stated.

User warrants and represents that he/she has actual and express authority to bind the entity for which he/she accepts these terms and that her entering into these terms and conditions of use is duly authorized by all necessary and appropriate entity action. SMS may amend these Terms and Conditions of Use at any time by posting the amended terms on the SMS site and any such amendments shall be effective immediately. By log in and continued use of the SMS site, User agrees to periodically review these Terms and Conditions of Use and shall continue to be bound by these Terms and Conditions as modified. These Terms and Conditions of Use may not be otherwise amended.

Content Disclaimer. SMS makes every effort to ensure that all content and images on its Web site are reliable, trustworthy and accurate and that all products are safe. Content is provided for informational purposes only, and not intended to be a substitute for professional medical advice, diagnosis or treatment. You should not use this information to diagnose or treat a health problem. Please consult your healthcare provider for information specific to your condition or if you suspect that you have a medical problem. The content provided on the Web site is not designed to promote or endorse a particular medical practice, program or agenda. Please report any informational or factual errors to mailto:webmaster@performancesavings.com... SMS assumes no responsibility for misstatements made by any third party that have not been brought to our attention.

Use of Content. SMS authorizes User to download a single copy of material on the SMS site solely for personal, noncommercial use. Reproduction or reprinting or these materials is prohibited without the expressed permission of SMS and its officers.

Product Disclaimer. SMS is not responsible for the accuracy of any claims made by the manufacturers, distributors and/or suppliers of products sold on this Web site. Before purchasing or using a product sold, advertised or promoted on SMS, you should carefully read all information provided by the manufacturer and consult with your healthcare provider. Never disregard professional medical advice or delay in seeking professional medical advice or treatment because of information you have obtained on the SMS site. SMS is not responsible for the quality or delivery of products purchased on this Web site, and makes no guarantees reported by manufacturers, distributors and/or suppliers.

Payment Terms. User input attests financial responsibility, ability and willingness to pay for all purchases and service charges incurred, in accordance with the agreed upon terms with any SMS supplier.

Eligibility. The SMS site is available only to customers [and suppliers] who can enter into legally binding contracts under applicable law for legitimate business purposes as further limited below with an e-mail address and one of the browsers specified on the SMS site. If User does not qualify under the foregoing, User may not use the SMS site. SMS makes no representation that the materials and services available on this site are appropriate or available for use in locations outside the United States, and accessing them from territories where they are illegal is prohibited. If User accesses the SMS site from outside of the United States, he/she does so at her own risk and is responsible for compliance with the laws of her jurisdiction.

SMS Is Strictly A Portal. The SMS site acts as an electronic portal for suppliers and customers. Through our best efforts, information posted on this site is intended to be accurate but may contain typographical errors. SMS makes no representations about the accuracy, reliability, completeness, or timeliness of information and services contained on, distributed through, or linked, downloaded or accessed from the SMS site and makes no representations whatsoever about the information posted on the SMS site or products or services obtained as a result of an advertisement or any other information or offer in or in connection with the SMS site. SMS is not involved in the actual transaction between customers and suppliers. As a result, SMS has no control over the quality, safety, or legality of the products or services advertised, the truth or accuracy of the listings, the ability of suppliers to sell products or services, or the ability of customers to buy products or services. SMS cannot and does not control whether or not suppliers will complete the sale of products or services they offer or customers will complete the purchase of products or services. In addition, note that there are risks of dealing across national borders, with underage people, or with people acting under false pretense. Because user authentication on the Internet is difficult, SMS cannot and does not confirm that users are who they claim to be. Because SMS does not and cannot be involved in user-to-user dealings, in the event that User has a dispute with one or more other users, User releases SMS (and SMS's agents and employees) from claims, demands, and damages (actual direct and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

For legal reasons, SMS cannot, nor does SMS try to, control the information provided by other users that is made available through the SMS site. By its very nature, other users' information may be inaccurate, and in some cases may be misleading. SMS expects that User will use caution -- and common sense -- when using the SMS site.

In the event that you have a dispute with a supplier or customer, or are in any way damaged as a result of dealings with a supplier or other customer, you release SMS (and its affiliates, agents, officers, directors and employees) from, and covenant not to sue SMS (and its affiliates, agents, officer, directors and employees) for, claims, demands and damages (whether direct, indirect, special, incidental or consequential) of every kind and nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way connected with such disputes or dealings.

User's Information. User's information includes any information User provides to SMS or other users in the registration, listing, or buying and selling processes, in any public message area, or in any e-mail feature (defined herein as "User's Information"). With respect to User's Information:

(1) User is solely responsible for User's Information, and SMS acts as a passive conduit for User's online distribution and publication of User's Information. However, SMS may take any action with respect to such information SMS deems necessary or appropriate in SMS's sole discretion if SMS believes it may create liability for, or loss to, SMS or other users, or may cause SMS to lose (in whole or in part) the services of SMS's ISPs or other suppliers.

(2) User's Information and loyalty offerings published through the SMS Site: (a) shall not be false, inaccurate, or misleading; (b) shall not be fraudulent or involve the sale of counterfeit or stolen items; (c) shall not infringe any third party's copyright, patent, trademark, trade secret, or other proprietary rights, or rights of publicity or privacy; (d) shall not violate any law, statute, ordinance, or regulation of any jurisdiction (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising); (e) shall not be defamatory, trade libelous, unlawfully threatening, or unlawfully harassing; (f) shall not contain pornography or otherwise be harmful to minors; (g) shall not contain any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information; and (h) shall not link directly or indirectly to or include descriptions of products or services:(1) that are prohibited under these Terms and Conditions of Use or the fruits of such prohibited products or services, or (2) to which User does not have a right to link or include. Furthermore, User may not post on the SMS site or sell through the SMS site any product or service that could cause SMS to violate any applicable law, statute, ordinance, or regulation of any jurisdiction.

(3) Solely to enable SMS to use User's Information that User supplies to SMS, so that SMS is not violating any rights User might have in that information, User agrees to grant SMS a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright and publicity rights User has in User's Information, in any media now known or not currently known, with respect to User's Information. SMS will use User's Information in accordance with the SMS Site's then-current privacy principles posted on, and or linked to, the SMS site, which principles are incorporated herein by reference. SMS may refer to User as a user in sales presentations, marketing vehicles, and marketing activities.

(4) If User chooses to establish a credit account with SMS, SMS shall collect some additional information from User, including billing address, credit card number and expiration date, tracking information from checks or money orders. User shall permit SMS to store this information on the SMS site and to use this information each time User purchases a product or service through the SMS site in accordance with the SMS site's then-current privacy principles posted on, and or linked to, the SMS site, which principles are incorporated herein by reference.

Site and System Integrity.  User may not use any device, software, or routine to interfere or attempt to interfere with the proper working of the SMS site or any transaction being conducted on the SMS site. User may not take any action that imposes an unreasonable or disproportionately large load on the SMS site infrastructure. User may not disclose to or share its SMS site user name or password with any third parties or use its SMS site user name or password for any purpose not permitted by these Terms and Conditions of Use. User may not delete or revise any material posted by any other user or entity. User may not decipher, decompile, disassemble, or reverse engineer any of the software comprising or making up part of the SMS site. User is prohibited from violating or attempting to violate the security of the SMS site, including, without limitation, (a) accessing data not intended for such user or logging into a server or account which the user is not authorized to access, (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization, (c) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Web Site, overloading, "flooding", "spamming", "mail bombing" or "crashing", (d) sending unsolicited e-mail, including promotions and/or advertising of products or services, or (e) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting. Violations of system or network security may result in civil or criminal liability. SMS will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.

Ownership of SMS Site. The SMS site is the property of SMS and is copyrighted and protected by United States copyright laws. "SMS" is a trademark of Smartcard Marketing Systems, Inc. SMS's trademarks may not be used in connection with any product or service that is not the property of SMS, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits SMS. All other trademarks not owned by SMS are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by SMS. User may print and download portions of the materials contained on the SMS site for User's non-commercial use provided User maintains the copyright notice and any other notices that appear on any such copies. Any other copying, redistribution, publication or retransmission of any portion of the materials on the SMS site is strictly prohibited without the express written permission of SMS. User agrees not to change or delete any proprietary notices from any materials copied from SMS site. All information generated as a result of establishing or operating the SMS site shall be the property of SMS and may be sold, distributed or otherwise disseminated by SMS for any purpose whatsoever, provided SMS shall not sell, distribute or otherwise disseminate specific information about User in such a way that would identify User, except to the extent expressly authorized by User. Notwithstanding the foregoing, SMS retains the right to release any User information in compliance with the directive of any court of competent jurisdiction or in compliance with the requirements of any law.

Links to Third-Party Sites. The SMS site may contain links to third-party Web sites that are not under the control or operation of SMS. SMS provides any such links only as a convenience and does not endorse and is not responsible for the contents of any linked site or any site linked to or from a linked site. Please refer to the Terms and Conditions of each third party website to determine the rights and obligations of a user of such website.

Warranties and Exclusive Remedies. The SMS site and its content are provided on an "as-is" basis. SMS makes no warranties about the accuracy, reliability, completeness, or timeliness of SMS material, services, software, text, graphics, and links. SMS disclaims any and all warranties, whether express or implied, including warranties of title, non-infringement, merchantability and fitness for a particular purpose. SMS does not guarantee that the site will operate error-free and does not guarantee continuous, uninterrupted, or secure access to the SMS site, and operation of the SMS site may be interfered with by numerous factors outside of SMS's control. If SMS cannot correct the problems that cause a breach of SMS's warranty, User may terminate the SMS site service and, as its sole remedy, recover the specific SMS site transaction fee(s) paid to SMS for the SMS site service giving rise to the breach. This limited warranty gives User specific legal rights, and User may have other rights that vary from jurisdiction to jurisdiction.

LIMITATION OF LIABILITY. IN NO EVENT SHALL SMS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, OR DATA USE, INCURRED BY USER OR ANY THIRD PARTY (HOWEVER ARISING, INCLUDING NEGLIGENCE). SMS'S ENTIRE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE FEES ACTUALLY PAID BY USER TO SMS FOR THE APPLICABLE SMS SITE SERVICES GIVING RISE TO THE LIABILITY. IN NO EVENT SHALL SMS BE LIABLE FOR ANY CLAIM, CAUSE OF ACTION, OR DAMAGES, ARISING OUT OF OR IN CONNECTION WITH (A) ANY INFORMATION POSTED ON THE SMS SITE, OR (B) ANY ARRANGEMENT BETWEEN USERS.

Indemnification. User agrees to defend and hold harmless SMS and its affiliates, officers, directors, agents and employees, against all claims, suits, and proceedings brought by third parties, and will indemnify and hold them harmless from and against any and all related liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorneys' fees) arising out of, relating to or incurred in connection with (a) the use of User's Information, including any third-party claims alleging infringement of any copyright, trademark or other intellectual property right or alleging libel, defamation or invasion of privacy; (b) any breach of warranty or other provision of this agreement by User; (c) User's involvement in whatever form with any other users, and (d) User's use of the SMS site.

Export. User agrees to comply with all export laws and restrictions and regulations of any United States or foreign agency or authority, and not to directly or indirectly provide or otherwise make available the services and products of SMS site in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, User shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own use of the services of SMS site outside the United States. Neither the services of SMS site nor the underlying information or technology may be downloaded or otherwise provided or made available, either directly or indirectly, (I) into Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department's Table of Denial Orders. By agreeing to these Terms and Conditions of Use, User agrees to the foregoing and represents and warrants that it is not located in, under the control of, or a national or resident of any such country or on any such list.

Miscellaneous Terms. User acknowledges that the SMS site is based in the United States, and that all legal actions between User and SMS that are related to these Terms and Conditions of Use: (a) shall be governed by the laws of the State of Texas, and (b) shall be instituted in a state or federal court in Bexar County, Texas U.S.A.; and User further acknowledges that (a) and (b) apply regardless of the governing law and jurisdiction that may be proper for disputes between User and any other SMS site user. User shall comply with all applicable laws, statutes, ordinances, and regulations regarding User's use of the SMS site and SMS's services. SMS may immediately issue a warning or deny, suspend, or terminate User's membership and any other information User places on the SMS site if User is ineligible, if User breaches these Terms and Conditions of Use, if SMS is unable to verify or authenticate any information User provides to SMS, or if otherwise in SMS's sole discretion. SMS's failure to act with respect to a breach by User or others does not waive SMS's right to act with respect to subsequent or similar breaches or any of its rights under these Terms and Conditions of Use. User and SMS are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchisor-franchisee relationship is intended or created by these Terms and Conditions of Use.

Complete Agreement. Except as expressly provided in a particular "legal notice" on the SMS site, these Terms and Conditions of Use constitute the entire agreement between the User and SMS with respect to the use of the SMS site. Use of the SMS site is also subject to the SMS Privacy Policy