Last Updated: October 10, 2013
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1. ABOUT THE SERVICE; TRIAL USE AND BILLING—Smile currently offers the Service on a free basis. We may add paid premium services in the future. By signing up to try the Service, you acknowledge and agree that you understand that some benefits and features may be offered as paid Services in the near future and that you may be asked to pay for them or terminate your use of the Service.
2. MEMBER ACCOUNTS—In order to use certain features of the Service, you will have to create an account (“ Account”). You may never use another’s Account without permission. You will be responsible for the confidentiality and use of your login and password and agree not to transfer or resell your use of or access to the Site to any third party. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR LOGIN AND PASSWORD AND FOR ANY AND ALL ACTIVITIES (INCLUDING PURCHASES, AS APPLICABLE) THAT ARE CONDUCTED THROUGH YOUR ACCOUNT.
4. INTELLECTUAL PROPERTY OWNERSHIP
Except for your Content, all text, content, documents, names, logos, trademarks, service marks, brand identities, characters, trade names, graphics, designs, copyrights, trade dress, or other intellectual property appearing in the Website, and the organization, compilation, look and feel, illustrations, artwork, videos, music, software and other works on the Website (the “Materials”) are owned by Smile and its affiliates or used with permission or under license from a third party (hereinafter collectively referred to as the “Owner”) and are protected under copyright, trademark and other intellectual property and proprietary rights laws. As between Smile and you, all right, title and interest in and to the Materials will at all times remain with Smile and/or its Owners. The word “Smile” and “Smile logo,” and other marks, logos and titles are registered and/or common law trade names, trademarks or service marks of Threefold Photos. All Content is the sole responsibility of the user who provided it and is stored upon Smile’s servers and/or system solely at the direction of such user. Please see the Digital Millennium Copyright Act section below for more details. Smile reserves all other rights. Except as expressly provided herein, nothing on the Site shall be construed as conferring any license under Smile’s and/or its Owner’s intellectual property rights, whether by estoppel, implication or otherwise. Notwithstanding anything herein to the contrary, Smile may revoke any of the foregoing rights and/or your access to the Site, or any part thereof, including the blocking of your IP Address, at any time without prior notice.
You retain ownership of your Content, but please note that, while you retain ownership of your Content, any template or layout in which you arrange or organize such Content through tools and features made available through the Site or the Apps are not proprietary to you, and can be used by Smile and others for any purposes. You acknowledge and agree that you have no rights in any such template and/or layout, and such template or layout shall be the sole and exclusive property of Smile. You represent, warrant and covenant that (i) you own or otherwise possess all necessary rights with respect to your Content, and (ii) your Content does not and will not infringe, misappropriate, use or disclose without authorization, or otherwise violate any intellectual property or proprietary right of any third party, and are not unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable.
5. RESTRICTIONS ON USE— No other use of the Service or Materials is authorized. You agree that any copy of the Materials (or any portion of the Materials) that you make must retain all copyright and other proprietary notices contained herein or therein. Framing of the Site or Apps or posting of Materials on other Web Site is strictly prohibited. The use or misuse of any Materials, except as provided in these Terms is strictly prohibited. You shall not, without Smile’s express written consent: (a) distribute text or graphics to others, (b) copy and retransmit, disseminate, broadcast, circulate, or otherwise distribute the Materials on any other server, or modify or re-use all or part of the Materials on this system or any other system, (c) use any tradename, trademark, or brand name of Smile in metatags, keywords and/or hidden text, (d) copy, distribute, modify, transmit, perform, reuse, re-post, or otherwise display the Materials, in whole or in part, for public or commercial purposes or modify, translate, alter or create any derivative works thereof, (e) create derivative works from the Materials or commercially exploit the Materials, in whole or in part, in any way, (f) use the Site, the Materials, and/or any portion thereof, in any manner that may give a false or misleading impression, attribution or statement as to Smile, the Owner, or any third party referenced therein, (g) use the Materials, and/or any services and products on the Site or accessible via the Site for unlawful purposes only; or (h) alter, remove or obscure any copyright notice, digital watermarks, proprietary legends or any other notice included in the Materials.
6. ACCEPTABLE USE—Your use of the Site is conditioned upon your compliance with the following rules (“Acceptable Use Restrictions”):
You shall not upload to, transmit through, or display via Smile any Content that: (i) is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights; (ii) contains confidential, proprietary, or trade secret information of any third party; (iii) violates the rights of others, including without limitation any privacy rights or rights of publicity; (iv) impersonates any person or entity, falsely states or otherwise misrepresents your affiliation with any person or entity, or uses any fraudulent, misleading or inaccurate email address or other contact information; (v) violates any Applicable laws or regulations; (vi) makes any statement, express or implied, that you are endorsed by Smile; (vi) harms minors in any way, including, but not limited to, by depicting content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct; (vii) contains any unsolicited promotions, political campaigning, advertising or solicitations; (viii) in our sole judgment is inappropriate or objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose the Smile, any of its officers, directors, or employees, or other users to any harm or liability of any type.
You shall not use the Service to engage in any of the following activities: (i) accessing, using, or uploading Content to, or attempting to access, use, or upload Content to another user’s account without permission; or (ii) transmitting, uploading, or downloading, any software or other materials that contain any viruses, worms, trojan horses, defects, date bombs, time bombs or other items of a destructive nature.
You shall not: (i) modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Apps or any Site; (ii) remove any copyright, trademark or other proprietary rights notices contained in or displayed on any portion of the Service; (iii) “frame” or “mirror” any portion of the Site or Apps, or link to any Material other than via the homepage of the URLs provided by us to you for such purposes, without our prior written authorization; (iv) use any robot, spider, site search/retrieval Application or other manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Site; or (v) harvest or collect information about or from users of the Site without their express consent and, if such consent is provided, only pursuant to Applicable law. Smile does not endorse any Content or any opinion, recommendation, or advice expressed therein, and Smile expressly disclaims any and all liability in connection with Content. Smile does not permit copyright infringing activities and infringement of intellectual property rights on the Site or via the Apps, and Smile reserves the right to remove Content without prior notice and/or to terminate a user’s access to the Site, Apps, or the Service in its entirety, if the user has been notified of infringing activity and has had Content removed from the Site more than twice. Smile also reserves the right to decide whether Content is Appropriate and complies with these Acceptable Use Restrictions at any time, without prior notice and at its sole discretion.
The Site or Apps may include access to bulletin boards, blogs, chat rooms, comments sections, and other community forums which allow you to post information, provide feedback and comments, and otherwise interact with other users, either through postings or by interacting in real-time. In connection with such services, you agree to abide by any rules that Smile publishes in connection therewith, including but not limited to, the prohibition on use of the Site for any unlawful purpose. Although Smile may from time to time review discussions, chats, comments, transmissions, bulletin boards, blogs, chat rooms, and other community forums available via the Site (the “Community Forums”), you acknowledge Smile is under no obligation to monitor or control, and shall have no liability for, any information available in the Community Forums. You acknowledge that any opinions, statement, recommendation, offers, advice or other information presented or disseminated on the Community Forums are those of their respective authors who are solely responsible and liable for their content. Smile reserves the right, in its sole discretion, to refuse to post or remove any material submitted or posted on the Community Forums.
Descriptions, images, references, features, content, specifications, products, price and availability of any products or services are subject to change without notice, and our current prices will be listed in the app if and when we introduce a paid Premium Service. We make reasonable efforts to accurately display the attributes of our products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any products or services on the Site at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal and international laws (including minimum age requirements) in regard to the possession, use and sale of any item purchased through the Service. By placing an order, you represent that the products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any product or service; to honor, or impose conditions on the honoring of, any coupon, coupon code, promotional code or other similar promotions; to bar any user from making any or all purchase(s); and/or to refuse to provide any user with any product or service.
Title and risk of loss for any purchases pass to you upon our delivery to our carrier. When you place an order, we will not charge you until we ship the items ordered. We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment.
8. ARBITRATION; APPLICABLE LAW
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
Except for a claim by Smile of infringement or misappropriation of Smile’s patent, copyright, trademark, or trade secret, any and all disputes between you and Smile arising under or related in any way to these Terms must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of the Apps.
YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND SMILE ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND DEVELOPER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and Developer must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in San Francisco, California. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in San Francisco, California. Claims of infringement or misappropriation of Developer’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in San Francisco, California.
The laws of the State of California, excluding its conflicts of law rules that would result in the laws of a State other than California, govern your use of the Site and the Service.
12. DIGITAL MILLENNIUM COPYRIGHT ACT—Smile is committed to respecting and protecting the legal rights of copyright owners. As such, Smile adheres to the following notice and take down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.). If you believe any of the Materials infringes upon your intellectual property rights, please submit a notification alleging such infringement (hereafter a “DMCA Takedown Notice”). To be valid, a DMCA Takedown Notice must (i) be provided to Smile’ designated agent, (“Copyright Agent”), as set forth below, and (ii) include the following:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
Smile’s Copyright Agent to receive DMCA Takedown Notices is: firstname.lastname@example.org. Or you may send the written document to the designated Copyright Agent:
Smile c/o Threefold Photos
Attn: Designated Copyright Agent
200 Tamal Plaza #200
Corte Madera, CA 94925
15. DISCLAIMERS—WITHOUT LIMITING THE FOREGOING, THE MATERIALS AND ALL OTHER FEATURES ON OFFERED VIA THE SERVICE, INCLUDING THE APPS OR ANY SITE, ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND WITH RESPECT TO THE SITE AND/OR MATERIALS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. SHOULD APPLICABLE LAW NOT PERMIT THE FOREGOING EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, THEN SMILE HEREBY GRANTS THE MINIMUM EXPRESS OR IMPLIED WARRANTY REQUIRED BY SUCH APPLICABLE LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SMILE, ITS EMPLOYEES, AGENTS, SUPPLIERS OR ANY OTHER PERSONS SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS SECTION. ADDITIONALLY, SMILE DOES NOT MAKE ANY WARRANTIES THAT THE SERVICE, INCLUDING THE APPS OR ANY OF THE SITE, WILL BE UNINTERRUPTED, SECURE OR ERROR FREE OR THAT YOUR USE OF THE SERVICE, APPS, OR ANY SITE WILL MEET YOUR EXPECTATIONS, OR THAT THE SERVICE, MATERIALS, OR ANY PORTION THEREOF, IS CORRECT, ACCURATE, OR RELIABLE. COMPANY RESERVES THE RIGHT TO CHANGE ANY PART OF THE SERVICE, INCLUDING THE APPS OR ANY SITE AT ANYTIME WITHOUT NOTICE.
18. NO ARCHIVE – Notwithstanding anything contained herein, the functionality provided to you by the Service and the Smile systems, networks and servers are not an archive and Smile shall have no liability to you or any other person for loss, damage, or destruction to your Content or any other information submitted to or via the Service. You shall be solely responsible for (i) uploading your Content, (ii) preventing any loss or damage to your Content, and (iii) maintaining independent archival and backup copies of any Content.
19. ASSIGNMENT—These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Smile without restriction.
22. MISCELLANEOUS—Smile’s failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.