Terms of service
Effective as of May 15, 2016, we have updated Terms of Service that apply to SmileyGo.
THESE TERMS OF SERVICE (“TERMS”) CONSTITUTE A CONTRACT BETWEEN YOU AND THE SMILEYGO CORPORATION, A DELAWARE CORPORATION KNOWN AS “SMILEYGO” HEADQUARTERED IN 44 TEHAMA STREET SAN FRANCISCO, CALIFORNIA 94105 (AS DEFINED IN SECTION 18 BELOW) AND GOVERN USE OF AND ACCESS TO THE SERVICE AND SITE BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE SERVICE OR A FREE TRIAL OF THE SERVICE.By accepting these Terms, or by accessing or using the Service or Site, or authorizing or permitting any Agent or End-User to access or use the Service, You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, corporation, nonprofit, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to SmileyGo that You have the authority to bind such Entity and its Affiliates to these Terms, in which case the terms “Subscriber,” “You,” “Your” or related capitalized terms herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Service.
When used in these Terms with the initial letters capitalized, in addition to the terms defined elsewhere in these Terms, the following terms have the following meanings:
means any accounts or instances created by or on behalf of Subscriber or its Agents within the Service.
means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
means an individual authorized to use the Service through Your Account as an agent and/or administrator as identified through a unique login and credentials.
means the application programming interfaces developed and enabled by the SmileyGo that permits Subscriber to access certain functionality provided by the Service, including without limitation, the REST API that enables the interaction with the Service automatically through HTTPS requests and the application development API that enables the integration of the Service with other web applications.
5. Associated Services
means products, services, features and functionality designed to be used in conjunction with the Service but not included in the Service Plan to which You subscribed, including without limitation, integrations and applications created or developed by SmileyGo or its Affiliates and made available in the SmileyGo marketplace (available at https://www.smileygo.net/products) which are expressly stated to be governed by these Terms. For avoidance of doubt, neither SmileyGo nor the SmileyGo Service or any other product, service, feature or functionality that is expressly stated to be governed by any alternative license, agreement or terms of service shall be deemed an Associated Service.
6. Confidential Information
means all information disclosed by You to SmileyGo to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to information relating to SmileyGo’s security policies and procedures. For purposes of these Terms, these Terms as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms or another valid agreement between the Parties; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
"Content" means text, images, photos, audio, video, intellectual property, location data, and all other forms of data or communication. "Your Content" means Content that you submit or transmit to, through, or in connection with the Service, such as ratings, reviews, and messages. "User Content" means Content that users submit or transmit to, through, or in connection with the Service. "SmileyGo Content" means Content that we create and make available in connection with the Service. "Third Party Content" means Content that originates from parties other than SmileyGo or its users, which is made available in connection with the Service. "Site Content" means all of the Content that is made available in connection with the Service, including Your Content, User Content, SmileyGo Content, and Third Party Content.
means Directive 95/46/EC on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data.
means any written or electronic documentation, images, video, podcast, audio, text or sounds specifying the functionalities of the SmileyGo Service provided or made available by the SmileyGo to You, Agents or End-Users through the Site or otherwise.
means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact using the Service.
means any of Our generated service order forms executed or approved by You with respect to Your subscription to a Service, which form may detail, among other things, the number of Agents authorized to use the Service under Your subscription to the Service and the Service Plan applicable to Your subscription to the Service.
12. Other Services
means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which the Service links to, or which You may connect to or enable in conjunction with the Service, including, without limitation, Other Services which may be integrated directly into Your Account.
"You" and "your" refer to you, as a user of the Service. A "user" is someone who accesses, browses, or in any way uses the Service, including—but not limited to—persons browsing our site and clients. "We", "us", and "our" refer to SmileyGo.
14. Personal Data
means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
15. Processing/To Process/Processed
means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
means the SmileyGo Service or SmileyGo Service, as applicable, together with all applicable Associated Services that You have purchased or deployed or to which You have subscribed (“Deployed Associated Services”), whether made available to You on a trial or paid basis.
17. Service Data
means electronic data, text, messages, communications or other materials submitted to and stored within the Service by You, Agents and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data.
18. Service Plan(s)
means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Service) for the SmileyGo Service or SmileyGo Service, as applicable, to which You subscribe.
means www.SmileyGo.org or www.SmileyGo.net, as applicable, as well as the other websites that the SmileyGo operates.
means the SmileyGo and/or SmileyGo entity with which You are contracting under these Terms and the SmileyGo Corporation., a Delaware corporation or any of its successors, assignees, or affiliates.
21. SmileyGo Service
means only the on-demand customer service solution made available by SmileyGo online via the subscriber login link at https://www.SmileyGo.net and other web pages designated by SmileyGo, including, individually and collectively, the applicable Software, Updates, API and Documentation.
means software provided by the SmileyGo (either by download or access through the internet) that allows an Agent or End-Users to use any functionality in connection with the applicable Service.
23. Subscription Term
means the period during which You have agreed to subscribe to the SmileyGo Service or SmileyGo Service, as applicable, with respect to any individual Agent.
24. Usage Data
means encoded or anonymized information or aggregated data that SmileyGo may collect about a group or category of services, features or users while You, Your Agents or End-Users use a Service for certain purposes, including analytics, which does not contain Personal Data.
25. "We, "Us" or "Our"
means the SmileyGo described in Section 18.
2. GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICE
2.1 During the Subscription Term and subject to compliance by You, Agents and End-Users with these Terms, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to, together with all applicable Deployed Associated Services, for Your internal business purposes. You may not use the Service to provide customer service, support or other outsourced business process services to more than one third party (other than Affiliates) through a single Account. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by the SmileyGo from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing.
2.2 A high speed Internet connection is required for proper transmission of the Service. You are responsible for procuring and maintaining the network connections that connect Your network to the Service, including, but not limited to, "browser" software that supports protocols used by the SmileyGo, including the Transport Layer Security (TLS) protocol or other protocols accepted by the SmileyGo, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by the SmileyGo. We assume no responsibility for the reliability or performance of any connections as described in this section.
2.3 In addition to complying with the other terms, conditions and restrictions set forth below in these Terms, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than authorized Agents and End-Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) use the Service to Process data on behalf of any third party other than Agents or End-Users; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any sponsorship or association with the SmileyGo, (e) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights; (f) use the Service to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Service in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Service; (j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Service to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by the SmileyGo; (l) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); or (m) attempt to use, or use the Service in violation of these Terms.
2.4 You are responsible for compliance with the provisions of these Terms by Agents and End-Users and for any and all activities that occur under Your Account, as well as for all Service Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Service to store and transmit Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Agents or End-Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Agents available under the applicable Service Plan(s) to which You subscribed or applicable Deployed Associated Service, access to and use of the Service is restricted to the specified number of individual Agents permitted under Your subscription to the Service. You agree and acknowledge that each Agent will be identified by a unique username and password (“Login”) and that an Agent Login may only be used by one (1) individual. You will not share an Agent Login among multiple individuals. The foregoing shall not be deemed to limit Your use of the Multi-Branding and Light Agent features of the SmileyGo Service if Your Service Plan includes these features or they are made available to you as a Deployed Associated Service. You and Your Agents are responsible for maintaining the confidentiality of all Login information for Your Account.
2.5 In addition to Our rights as set forth in Section 9.4, We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service: (a) during planned downtime for upgrades and maintenance to the Service (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Agents) (“Planned Downtime”); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (c) if We suspect or detect any Malicious Software connected to Your Account or use of the Service by You, Agents or End-Users.
3. DATA PRIVACY AND SECURITY; CONFIDENTIALITY
3.1 Subject to the express permissions of these Terms, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information (a) solely to those of our respective employees, representatives, subcontractors and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 3 shall supersede any non-disclosure agreement by and between the Parties that would purport to address the confidentiality and security of Service Data and such agreement shall have no further force or effect with respect to Service Data.
3.2 To the extent Service Data constitutes Personal Data, You and SmileyGo hereby agree that You shall be deemed to be the data controller and the relevant SmileyGo shall be deemed to be the data processor as those terms are understood under the Directive (and any applicable national legislation implementing the Directive). In providing the Service, the SmileyGo will engage entities within SmileyGo and other authorized service providers, to Process Service Data, including and without limitation, any associated Personal Data pursuant to these Terms in the United States and in other countries and territories. Under no circumstances will the relevant SmileyGo be deemed a data controller with respect to Service Data under the Directive or any relevant law or regulation of any Member State as defined in the Directive.
3.3 SmileyGo will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Service Data. These safeguards include encryption of Service Data in transmission (using TLS or similar technologies), except for certain Other Services that do not support encryption, which You may link to through the Service at Your election. Our compliance with the provisions of this Section 3.3 shall be deemed compliance with Our obligations to protect Service Data as set forth in Section 3.1.
3.4 You agree that We and the service providers that We utilize to assist in providing the Service to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide the Service, including, without limitation, in response to Your support requests. Any third party service providers We utilize will only be given access to Your Account and Service Data as is reasonably necessary to provide the Service and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.3 and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 3.6.
3.6 Unless otherwise specifically agreed to by SmileyGo, Service Data may be hosted or otherwise Processed by the SmileyGo, an Affiliate within SmileyGo, or their respective authorized service partners in the U.S. or other locations around the world.
4. INTELLECTUAL PROPERTY RIGHTS
Each Party shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, Agents and End-Users to use the Service under these Terms do not convey any additional rights in the Service, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service as expressly stated herein, all rights, title and interest in and to the Service and all hardware, Software and other components of or used to provide the Service, including all related Intellectual Property Rights, will remain with the SmileyGo and belong exclusively to the SmileyGo. SmileyGo shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents, End-User, or other third parties acting on Your behalf. SmileyGo®, and SmileyGo® other product and service names, and logos used or displayed on the Service are registered or unregistered trademarks of one or more members of the SmileyGo (collectively, “Marks”), and You may only use applicable Marks to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Us, Our services or products.
5. THIRD PARTY SERVICES
If You decide to enable, access or use Other Services, be advised that Your access and use of such Other Services is governed solely by the terms and conditions of such Other Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Services, including, without limitation, their content or the manner in which they handle data (including Service Data) or any interaction between You and the provider of such Other Services. You irrevocably waive any claim against the SmileyGo with respect to such Other Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Services, or Your reliance on the privacy practices, data security processes or other policies of such Other Services. You may be required to register for or log into such Other Services on their respective websites. By enabling any Other Services, You are expressly permitting the SmileyGo to disclose Your Login as well as Service Data as necessary to facilitate the use or enablement of such Other Services.
7. BILLING, PLAN MODIFICATIONS AND PAYMENTS
7.1 Unless otherwise indicated on a Form referencing these Terms or in any Additional Terms (as defined in Section 13.2) and subject to Section 7.2, all charges associated with Your access to and use of the Service (“Subscription Charges”) are due in full upon commencement of Your Subscription Term, or with respect to a Deployed Associated Service, at the time such Deployed Associated Service is purchased, subscribed to or otherwise deployed. At Our election, Subscription Charges for SmileyGo Voice may be charged in arrears or by requiring You to prepay for expected usage. If You fail to pay Your Subscription Charges or charges for other services indicated on any Form referencing these Terms within five (5) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You, Agents and End-Users.
7.2 If You choose to upgrade Your Service Plan or increase the number of Agents authorized to access and use the Service during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
7.3 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your Account, and the SmileyGo does not accept any liability for such loss.
7.4 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against the SmileyGo based on its income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
7.5 If You pay by credit card or certain other payment instruments, the Service provides an interface for the Account owner to change credit card information (e.g. upon card renewal). The Account owner will receive a receipt upon each receipt of payment by the Payment Agent, or they may obtain a receipt from within the Service to track subscription status. You hereby authorize the Payment Agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Service Plan for the Service and for periodic Subscription Charges applicable to Deployed Associated Services until You terminate Your Subscription to the Service, and You further agree to pay any Subscription Charges so incurred. In addition, to the extent that You have or are required to prepay for expected usage of SmileyGo Voice, Your credit balance will automatically be recharged with the same amount and by the same payment method chosen when You first establish a prepaid credit for SmileyGo Voice, or by such additional amount You request as a regular prepaid credit. If applicable, You hereby authorize SmileyGo and the Payment Agent to charge Your credit card or other payment instrument to establish such prepaid credit. You agree to promptly update your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. The Payment Agent uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent.
8. CREDITS POLICY
8.1 We may, at our sole discretion, choose to offer credits for the Service in various ways, including but not limited to, coupons, promotional campaigns, and referrals. SmileyGo reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by You to offset Your subsequent payments of Subscription Charges for the applicable Service. Credits may only be applied to Subscription Charges due for the Service specifically identified by SmileyGo when issuing the credit. Credits can only be used by You and are non-transferable.
8.2 To the extent that You have been awarded SmileyGo credits, unless the instrument (including any coupon) states an earlier expiration date, these SmileyGo credits shall expire and no longer be redeemable twelve (12) months from the date SmileyGo credit was issued. To the extent that You have been awarded SmileyGo credits, unless the instrument (including any coupon) states an earlier expiration date, these SmileyGo credits shall expire and no longer be redeemable upon twelve (12) months from SmileyGo credit last activity (i.e., SmileyGo credit issuance or SmileyGo credit usage).
9. CANCELLATION AND TERMINATION
9.1 Either Party may elect to terminate Your Account and subscription to the Service as of the end of Your then current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to the Services is so terminated, Your subscription to the Service (including any and all Deployed Associated Services) will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form, the Subscription Charges applicable to Your subscription to the Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service Plan and Deployed Associated Services to which You have subscribed or which you have deployed, as applicable, as of the time such subsequent Subscription Term commences.
9.2 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term. Following the termination or cancellation of Your subscription to the Service and/or Account, We reserve the right to delete all Service Data in the normal course of operation. Service Data cannot be recovered once Your Account is cancelled.
9.3 If You terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation pursuant to Sections 2.5(c) or 9.4, in addition to other amounts You may owe SmileyGo, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to the Service or cancel Your Account as a result of a material breach of these Terms by SmileyGo, provided that You provide advance notice of such breach to SmileyGo and afford SmileyGo not less than thirty (30) days to reasonably cure such breach.
9.4 We reserve the right to modify, suspend or terminate the Service (or any part thereof), Your Account or Your and/or Agents’ or End-Users’ rights to access and use the Services, and remove, disable and discard any Service Data if We believe that You, Agents or End-Users have violated these Terms. This includes the removal or disablement of Service Data in accordance with Our Copyright Infringement Notice and Takedown Policy available at https://www.smileygo.net/terms. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Agents, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by You, Agents or End-Users may be referred to law enforcement authorities at Our sole discretion.
10. DISCLAIMER OF WARRANTIES
THE SITE AND THE SERVICE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
11. LIMITATION OF LIABILITY
11.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
11.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, OUR AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE SERVICE, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES FOR SUCH SERVICE PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THESE TERMS.
11.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, THE SmileyGo’s LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
11.4 Any claims or damages that You may have against SmileyGo shall only be enforceable against SmileyGo and not any other entity or its officers, directors, representatives or agents.
12.1 We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Service as permitted hereunder, brought by a third party alleging that such Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by the SmileyGo for such defense, provided that (a) You promptly notify the SmileyGo of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) You fully cooperate with the SmileyGo in connection therewith. If use of the Service by You, Agents or End-Users has become, or in Our opinion is likely to become, the subject of any such IP Claim, We may at its option and expense (a) procure for You the right to continue using the Service as set forth hereunder; (b) replace or modify the Service to make it non-infringing; or (c) if options (a) or (b) are not commercially reasonable or practicable as determined by SmileyGo, terminate Your subscription to the Service and repay You, on a pro-rated basis, any Subscription Charges previously paid to SmileyGo for the corresponding unused portion of Your Subscription Term for such Service. We will have no liability or obligation under this Section 12.1 with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Service by anyone other than SmileyGo; or (iii) the combination, operation or use of the Service with other hardware or software where the Service would not by itself be infringing. The provisions of this Section 12.1 state the sole, exclusive and entire liability of SmileyGo to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Service by You, Agents or End-Users.
12.2 You will indemnify and hold SmileyGo harmless against any claim brought by a third party against SmileyGo arising from or related to use of the Service by You, Agents or End-Users in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms; provided that We promptly notifies You of the threat or notice of such a claim.
13. ASSIGNMENT; ENTIRE AGREEMENT; AMENDMENT
13.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or Your rights under these Terms or delegate performance of Your duties under these Terms without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You to any member of SmileyGo or in connection with any merger or change of control of SmileyGo or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
13.2 These Terms, together with any Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and SmileyGo with regard to the subject matter hereof. These Terms and any Form(s) shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof. Notwithstanding the foregoing, additional terms may apply to certain features, functionality, or services We offer as part of or distinct from the Service, including Associated Services (the “Additional Terms”). In those instances, We will notify You of such Additional Terms prior to the activation of these features, functionality, or services and the activation of these features, functionality, or services in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into these Terms when You or any Agent authorized as an administrator in Your Account activate the feature, functionality, or service. Where there is a conflict between these Terms and the Additional Terms, the Additional Terms will control.
13.3 We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Service following the effective date of any such amendment may be relied upon by SmileyGo as Your consent to any such amendment. Our failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.
If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.
15. EXPORT COMPLIANCE AND USE RESTRICTIONS
The Service and other Software or components of the Service that We may provide or make available to You, Agents or End-Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Service, Software and such other components by You, Agents and End-Users. You shall not access or use the Service if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit Agents or End-Users to access or use the Service in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Agents and End-Users are located.
16. RELATIONSHIP OF THE PARTIES
The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.17.
Sections 1, 2.3, 3, 4 and 9-21 shall survive any termination of our agreement with respect to use of the Service by You, Agents or End Users. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.
18. WITH WHOM YOU ARE CONTRACTING
18.1 For the purposes of these Terms, SmileyGo and the terms and conditions upon which each of the Parties contracts will vary depending on the Service. It is agreed that the table below sets out and determines (a) the entity within SmileyGo with which You are contracting pursuant to these Terms with respect to such Service; (b) to whom You should direct notices to for SmileyGo; (c) the law that will apply in construing or interpreting any dispute arising out of or in connection with these Terms as it relates to such Service; and (d) the courts which You and SmileyGo have agreed shall have exclusive jurisdiction over any final determination or interpretation in relation to these Terms with respect to such Service. If You are subscribing to: The SmileyGo is: Notices should be addressed to: The governing law is: The courts having exclusive jurisdiction shall be: SmileyGo Service SmileyGo Corporation. California and controlling United States federal law 44 Tehama Street San Francisco, California, U.S. 94105 SmileyGo Service
18.2 Payments made by credit card, debit card or certain other payment instruments for the SmileyGo Service are billed and processed by the Payment Agent. To the extent the Payment Agent “Stripe” is not SmileyGo, the Payment Agent is acting solely as a billing and processing agent for and on behalf of SmileyGo and shall not be construed to be providing the applicable Service.
All notices to be provided by SmileyGo to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by You on any Form; or (b) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to the SmileyGo in writing by Courier or U.S. Mail to the applicable following address in Section 18.1. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.
20. GOVERNING LAW
These Terms shall be governed by the jurisdictions detailed in Section 18.1 without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of those jurisdictions detailed in Section 18.1, for the purpose of resolving any dispute relating to this Agreement or access to or use of the Service by You, Agents or End Users.
21. FEDERAL GOVERNMENT END USE PROVISIONS
If You are a U.S. federal government department or agency or contracting on behalf of such department or agency, the Services are is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to You with only those rights as provided under the terms and conditions of these Terms.