Terms of Service
Last updated on November 6th, 2019THIS TERMS OF SERVICE (“Agreement”) CONSTITUTES A BINDING CONTRACT BETWEEN SMILEBOX, INC. AND ANY OF ITS AFFILIATED COMPANIES (“Smilebox”) AND THE CUSTOMER (“Customer”) THAT SUBSCRIBES TO THE SERVICE (DEFINED BELOW).
BY SUBSCRIBING TO THE SERVICE, OR BY OTHERWISE ACCESSING OR USING THE SERVICE, THE CUSTOMER ACKNOWLEDGES THAT THEY HAVE READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THE FOLLOWING (THE DATE OF SUCH OCCURRENCE BEING THE “Effective Date“):
(a) THIS AGREEMENT.
(b) OTHER SUPPLEMENTAL TERMS AND POLICIES REFERENCED HEREIN, WHICH ARE STATED TO BE INCORPORATED INTO THIS AGREEMENT BY REFERENCE.
(c) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND SAID ENTITY TO THIS AGREEMENT.
ARBITRATION NOTICE: THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION AGREEMENT – SEE SECTION 14 (MANDATORY ARBITRATION) AND ITS RELATED SCHEDULE A. PLEASE READ THAT SCHEDULE CAREFULLY, SINCE IT MAY REQUIRE YOU AND SMILEBOX TO ARBITRATE CERTAIN DISPUTES AND LIMIT THE MANNER IN WHICH BOTH PARTIES CAN SEEK RELIEF. THERE IS, HOWEVER, AN OPTION TO OPT-OUT.
1. Definitions“Affiliate” means, with respect to either party, any person, organization or entity controlling, controlled by, or under common control with, such party, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities or by contract or otherwise.
“Content” means any text, data, information, files, images, graphics, sounds, music, videos, code, audio clips, links, and/or other similar materials.
“Customer Content” means any Content inputted or uploaded to the Service, or transmitted through the Service, by or on behalf of Customer.
“Documentation” means any user guide for the Service that Smilebox provides or makes available to Customer.
“Feature” means any module, tool, functionality, or feature of the Service.
“Intellectual Property“means any and all inventions, invention disclosures, discoveries, improvements, works of authorship, technical information, data, databases, know-how, show-how, designs, ideas, drawings, logos, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, software (including object code, source code, APIs, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property or technology, in any format and media, anywhere in the world.
“Intellectual Property Rights” means any and all rights, titles, and interests in and to Intellectual Property (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) and includes without limitation patents, copyright and similar authorship rights, personal rights (such as Moral Rights, rights of privacy, and publicity rights), architectural, building and location (and similar geography-based) rights, mask work rights, trade secret and similar confidentiality rights, design rights, industrial property rights, trademark, trade name, trade dress and similar branding rights, as well as: (a) all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing rights; and (b) all goodwill associated with the foregoing rights.
“Law” means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
“Moral Rights” means any rights of paternity or integrity, or any right to claim authorship of a work, to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, any work, whether or not such would be prejudicial to the honor or reputation of the creator of the work, and any similar right, existing under judicial or statutory Law of any jurisdiction, or under any treaty.
“Order Form” means the subscription form submitted by Customer when subscribing to the Service.
“Service” means Smilebox’s proprietary service for sharing photos and life moments with slideshows, eCards, invitations and more, as operated by Smilebox’s proprietary platform, software and other Intellectual Property associated therewith.
“Service Plan” means the Basic, Premium, Pro or Business plan the Customer has subscribed to via the Order Form as well as in-app purchases made through a Device.
“Smilebox Content” means any Content (excluding Customer Content) appearing or made available on or in the Service.
“Update” means an upgrade or update (such as a fix or patch) to or of the Service, excluding new Features.
2.2. Subscription. Subject to the terms and conditions of this Agreement, Smilebox grants Customer a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable right, during the Term (defined below), to access and use the Service solely for Customer’s internal purposes (collectively, the “Subscription“).
The Subscription shall be subject to whatever other limitations or conditions (as such regarding Features, volume, duration, or location) are specified in the Service Plan. Use of the Service must be in accordance with the Documentation.
2.3. Free Trial. For each Subscription, Smilebox may offer a free trial period (if offered, the default period is seven (7) days, unless configured otherwise by Smilebox) (“Free Trial” and “Free Trial Period“) prior to charging for the Fees. The Free Trial, if any, shall commence on the date that Customer commences access or use of the Service, and will terminate at the end of the Free Trial Period, or sooner if: (a) Customer proceeds to begin paying the applicable Fees, (b) Customer requests to cancel the Subscription, or (c) the Free Trial is terminated by Smilebox, in its sole discretion. Upon termination of the Free Trial, and unless Customer has cancelled the Subscription or Smilebox has terminated the Free Trial, the Fees shall become immediately due and payable (and if no payment or billing information have been provided, Customer shall, and may be required, to provide such information). Free Trials are permitted solely for Customer to determine whether to proceed to a paid Subscription. Free Trials may not include all Features. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SMILEBOX AND SMILEBOX AFFILIATES WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS OR LIABILITIES WITH RESPECT TO FREE TRIALS, AND SMILEBOX HAS THE RIGHT TO TERMINATE A FREE TRIAL AT ANY TIME AND FOR ANY REASON.
2.4. Restrictions. As a condition to the Subscription, Customer shall not do (or permit or encourage to be done) any of the following (in whole or in part): (a) copy, “frame” or “mirror” the Service or Smilebox Content; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service or Smilebox Content to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Service or Smilebox Content; (d) modify, alter, adapt, arrange, or translate the Service or Smilebox Content; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service or Smilebox Content; (f) remove, alter, or conceal any copyright, trademark, patent, or other proprietary rights notices displayed on or in the Service or Smilebox Content; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service or Smilebox Content; (h) make a derivative work of the Service or Smilebox Content, or use them to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item (for example, by way of Customer Content) intended (or that has the potential) to damage or disrupt the Service or Smilebox Content; (j) employ any hardware, software, device, or technique to pool connections, devices or users that directly access or use the Service or Smilebox Content (sometimes referred to as ‘virtualization’, ‘multiplexing’ or ‘pooling’) in order to circumvent any limitations or conditions on the scope of the Subscription; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Service or Smilebox Content by Customer; or (l) take any action that imposes or may impose (as determined in Smilebox’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service or Smilebox Content, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.
2.5. Reservation of Rights. For the avoidance of doubt, the Service and Smilebox Content (including any copies thereof) are only licensed hereunder, and no title in or to the Service or Smilebox Content (or such copies) passes to Customer, even after installation on your personal computers, mobile handsets, tablets, and/or other devices (“Devices”) Any rights not expressly granted herein are hereby reserved by Smilebox and its licensors, and, except for the Subscription, Customer is granted no other right or license to the Service or Smilebox Content, whether by implied license, estoppel, exhaustion, operation of law, or otherwise.
2.6. Delivery. The Service will be delivered electronically. Unless specified otherwise in the Order Form, the Service shall be deemed accepted upon delivery.
2.7. Data Backup. The Service is not intended to, and will not, operate as a data storage or archiving product or service, and Customer agrees not to rely on the Service for the storage of any Customer Content whatsoever. Customer is solely responsible and liable for the maintenance and backup of all Customer Content.
3. UPDATES AND SUPPORT3.1. Updates. All references herein to the “Service” shall include any Updates provided by or on behalf of Smilebox under this Agreement. Smilebox may from time to time provide Updates but shall not be under any obligation to do so. Such Updates will be supplied according to whatever then-current internal policies Smilebox may have in place, and some Updates may, in any event, be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Smilebox in its sole discretion. Some Updates may include automatic updating or upgrading without any notice or obligation to Customer, and Customer consents to any such automatic updating or upgrading of the Service. In some cases, Customer may be required to install the Update manually. An Update may be accompanied by separate or additional terms and conditions, as well as additional fees (in each case, “Update Specific Terms“). Unless stated otherwise in Update Specific Terms, all Update Specific Terms apply in addition to (and not instead of) this Agreement.
3.2. Support. Smilebox (and/or a Smilebox Affiliate or subcontractor) will use commercially reasonable efforts to provide Service-related technical support via any helpdesk or online portal offered via the Service and/or https://support.smilebox.com.
3.3. The Service is developed by Smilebox or for Smilebox and is designed to enable the use of the Service through supported Devices; this software may vary by Device and medium and functionalities and features and offerings may also differ between Devices.
4. CUSTOMER CONTENTAs between Customer and Smilebox, Customer is solely responsible and liable for (and agrees to hold harmless and release Smilebox and all Smilebox Affiliates from) all Customer Content, Smilebox’s processing of Customer Content, for all use of Customer Content (including without limitation use by others), as well as for the consequences of inputting, uploading, or transmitting Customer Content (including without limitation, for obtaining any licenses, permissions, consents, approvals, and authorizations from individuals appearing therein).
Customer hereby represents and warrants that: (a) its Customer Content does not, and will not, infringe, misappropriate, or violate any third party’s Intellectual Property Rights, privacy rights (or other personal rights), or any Law; (b) its Customer Content is not, and will not be, disparaging, libelous, threatening, offensive, harassing, deceptive, abusive, promoting of violence, illegal drugs, illegal arms trafficking, or illegal gambling, and does not, and will not, contain obscenity or pornography, create any risk to a person’s safety or health, impersonate another person, compromise national security, or interfere with an investigation by law enforcement; and (c) it has obtained, and will maintain during and after any termination of this Agreement, any and all licenses, permissions, consents, approvals, and authorizations required in connection with Customer Content. The content, nature, frequency, and quantity of Customer Content has not been specifically requested or authorized (and may or may not be reviewed) by Smilebox and is submitted to the Service at Customer’s sole risk and discretion. Unless specifically requested by the Service, or strictly required for use of the Service, Customer represents and warrants that Customer Content will not include any Sensitive Data (as defined below), unless Sensitive Data is specifically requested by the Service or Smilebox.
“Sensitive Data” means any (i) categories of data enumerated in Article 9(1) of the European Union’s General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor Law; (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA“), and Customer also agrees that Smilebox is not acting as Customer’s Business Associate or subcontractor (as such terms are defined under HIPAA); (iii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS“); (iv) other information subject to regulation or protection under specific Laws, such as the United States’ Gramm-Leach-Bliley Act (or related Laws); (v) social security numbers, national insurance numbers, driver’s license numbers or other government ID numbers; or (vi) any data similar to the foregoing that is protected under foreign or domestic Laws.
5. PAYMENT5.1. Fees. Customer agrees to pay all fees stated in the Order Form and according to the Service Plan (“Fees“), and in accordance with the Service Plan’s applicable billing cycle (“Billing Cycle“) and other payment terms.
5.2. General. Unless expressly stated otherwise in the Order Form or Service Plan: (a) all Fees are stated, and are to be paid, in currency stated in the time of payment via credit or debit card, PayPal, in-app purchases made through the applicable app marketplace (i.e. Apple Appstore or Google Play) or any other payment method that shall offered by Smilebox from time to time (the “Payment Method”); (b) all Fees are payable in advance; (c) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of the rate of one and a half percent (1.5%) per month and the highest amount permitted by applicable Law. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Smilebox’s net income. In the event that Customer is required by any Law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Smilebox shall be increased by the amount necessary so that Smilebox receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.
5.3. Payment Method and Processing. Customer represents that it is the authorized user of the Payment Method. Customer shall provide Smilebox accurate and complete billing information and agrees to promptly notify Smilebox of any changes to the Customer’s billing information. For certain Payment Methods, there may be a temporary charge of $0.01 to verify the card’s validity (but this amount will be refunded as soon as the Payment Method is confirmed). Customer authorizes Smilebox (either directly or through third parties) to request and collect payment (and otherwise charge, refund or take any other billing actions) from Customer on a recurring basis, including without limitation via Smilebox’s payment provider or Customer’s designated banking account, and to make any inquiries Smilebox deems necessary to validate Customer’s designated Payment Method or financial information, in order to ensure prompt payment (including for the purpose of receiving updated payment details from Customer’s payment, credit card or banking account provider – such as, updated expiry date or card number as may be provided to Smilebox by Customer’s credit card company). Payment of Fees may be processed through a third-party payment processing service (which will receive and process Customer’s billing information), and additional terms may apply to such payments.
6. OWNERSHIP6.1. Service. As between the parties, Smilebox is, and shall be, the sole and exclusive owner of all Intellectual Property Rights in and to (a) the Service; and (b) any and all improvements, derivative works, modifications, and/or customizations of/to the Service, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by Smilebox to ensure and/or provide Smilebox the ownership rights set forth in the preceding sentence.
6.2. Customer Data. As between the parties, Customer is and shall be, the sole and exclusive owner of all Customer Content.
6.3. Feedback and Statistical Data. In the event that Customer (or any person on Customer’s behalf) provides any suggestions or similar feedback regarding the Service and/or Smilebox Content, or any part thereof (“Feedback“), and/or to the extent Smilebox receives de-identified statistical (or similar) information or data regarding Customer’s use of the Service and/or Smilebox Content (“Statistical Data“), Smilebox shall be entitled, in perpetuity, to use and commercially exploit such Feedback and Statistical Data without any obligation or restriction whatsoever.
7. THIRD PARTY SERVICESThe Services enable you to engage and procure certain third-party services, products, and tools for enhancing your overall user experience, including, without limitation, printing and shipping services (collectively, “Third Party Services”). You acknowledge and agree that regardless of the manner in which such Third Party Services may be offered to you, Smilebox merely acts as an intermediary platform between you and such Third Party Services, and does not in any way endorse any such Third Party Services, or shall be in any way responsible or liable with respect thereto. Smilebox will not in any way be responsible for monitoring, any interaction or transaction between you and any Third party Services. You acknowledge that such services may require the payment of additional amounts to Smilebox and/or to the providers of such Third-Party Services. Any and all use of such Third Party Services shall be done solely at your own risk and responsibility and may be subject to such legal and financial terms which govern such Third Party Services, which you are encouraged to review before engaging with them. While we hope to avoid such instances, Smilebox may, at any time and at its sole discretion, suspend, disable access to or remove from the Service any Third-Party Services –– without any liability to you or to any End Users.
8. CONFIDENTIALITYEach party and/or its Affiliates (the “Recipient“) may have access to certain non-public or proprietary information and materials of the other party and/or its Affiliates (the “Discloser“), whether in tangible or intangible form (“Confidential Information“). Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, was in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. The Recipient shall not disclose the Discloser’s Confidential Information to any third party, except to its employees, advisers, agents and investors, subject to substantially similar written confidentiality undertakings. Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature, to protect the Discloser’s Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser’s Confidential Information solely for the purposes of performing under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any Law, regulation, or governmental or judicial order, the Recipient will (a) promptly notify Discloser in writing of such Law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to the extent required by such Law, regulation or order (as the case may be). Upon termination of this Agreement, or otherwise upon reasonable written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information (or if embodied electronically, permanently erase it, and if requested, certify such erasure in a signed writing).
9. DISCLAIMERSTHE SERVICE, SMILEBOX CONTENT, AND ALL OTHER SERVICES AND ITEMS PROVIDED OR MADE AVAILABLE BY SMILEBOX ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE, OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET POSSESSION, NON-INFRINGEMENT, TITLE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY SMILEBOX AND ITS LICENSORS;
SMILEBOX DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE, OR CONDITION REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, COMPLETENESS, OR QUALITY OF THE SERVICE, SMILEBOX CONTENT, OR OTHER SERVICES AND ITEMS PROVIDED OR MADE AVAILABLE BY SMILEBOX, THAT CUSTOMER’S USE THEREOF WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY GOVERNMENT REGULATIONS OR STANDARDS.
The above disclaimers apply to the maximum extent permitted by applicable Law. If Customer is a consumer under its applicable Law, Customer may have legal rights in its country of residence which would prohibit the above disclaimers from (fully or partially) applying to Customer (for example, some jurisdictions’ Laws do not allow the disclaimer of certain implied warranties or conditions, and do not allow limitations to be imposed on statutory rights), and, to the extent the above disclaimers are prohibited, then Customer and Smilebox agree that they will not apply to Customer.
10. LIMITATION OF LIABILITY10.1. EXCEPT FOR BREACHES OF CONFIDENTIALITY UNDER SECTION 7 (CONFIDENTIALITY), A BREACH OF THE SUBSCRIPTION, AND/OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
(A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
(B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
(C) ANY LOSS OF, THEFT OF, OR DAMAGE TO, CUSTOMER CONTENT, DATA, NETWORKS, HARDWARE, REPUTATION, OR GOODWILL; AND/OR
(D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
10.2. THE COMBINED AGGREGATE LIABILITY OF SMILEBOX AND ALL SMILEBOX’S AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER (IF ANY) TO SMILEBOX OR A SMILEBOX AFFILIATE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY.
10.3. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHER CONTRACT, TORT OR STATUTORY LIABILITY.
11. INDEMNIFICATIONIf any third party (including, but not limited to, a regulatory or governmental authority) brings any kind of demand, claim, suit, action or proceeding against Smilebox, a Smilebox Affiliate, and/or any of their respective directors, officers, employees, or representatives (each, an “Indemnitee“), and it is based upon or arises from:
(a) Customer’s use of the Service;
(b) Customer’s breach of any provision of this Agreement; and/or
(c) Any demand, claim, suit, action, or proceeding brought by, or loss or damage incurred or suffered by, any employee or client of Customer
(each of the foregoing, an “Indemnity Claim“) then, upon written request by Smilebox (to be decided in its sole discretion), Customer agrees to assume full control of the defense and settlement of the Indemnity Claim; provided, however, that (c) Smilebox reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Indemnity Claim, and in such cases Customer agrees to reasonably cooperate with Smilebox’s defense activities at Customer’s own cost and expense; and (d) Customer shall not settle any Indemnity Claim, or admit to any liability thereunder, without the express prior written consent of the Indemnitee(s).
In addition, and regardless of whether (or the extent to which) Customer controlled or participated in the defense and/or settlement of an Indemnity Claim, Customer agrees to indemnify and hold harmless the Indemnitee(s) for and against: (e) any costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnitee(s) in the defense of the Indemnity Claim; and (f) any amounts awarded against, or imposed upon, the Indemnitee(s) under such Indemnity Claim, or otherwise paid in settlement of the Indemnity Claim (including without limitation any fines or penalties).
12. TERM AND TERMINATION12.1. Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect for the Subscription term stated in the applicable Service Plan (the “Initial Term“), following which, based on the terms of the applicable Service Plan, this Agreement shall automatically renew for successive periods of equal length (each, a “Renewal Term“, and together with the Initial Term, the “Term“).
12.2. Termination by Smilebox for Convenience. Smilebox reserves the right to terminate this Agreement for convenience, at any time, and without prior notice or obligation to Customer, and Customer agrees that Smilebox shall have no liability to Customer for any such termination; provided, however, that if terminated by Smilebox under this paragraph, then Smilebox shall refund to Customer a pro-rated amount of any pre-paid and unused Fees based on the remainder of the then-current Initial Term or Renewal Term (as the case may be).
12.3. Termination by Smilebox for Cause. Smilebox may terminate this Agreement immediately upon notice to Customer (which may be via email or via the functionality of the Service): (a) if Customer commits a material breach under this Agreement (and default of any payment obligations shall be deemed a material breach); and/or (b) upon the occurrence of any of the following events in respect of Customer: (i) a receiver is appointed for Customer, which appointment is not dismissed within sixty (60) days; (ii) Customer makes a general assignment for the benefit of its creditors; (iii) Customer commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) Customer is liquidating, dissolving or ceasing normal business operations.
12.4. Termination by Customer. Customer may terminate this Agreement for convenience, for cause, or for any other reason, at any time, via the functionality offered via the Service. In such case, termination will take effect at the end of the then-current Billing Cycle (and until that date Customer will still be able to use the Service), and Customer will not be charged for the subsequent Billing Cycle. For the avoidance of doubt, any pre-paid Fees will not be refunded. If Customer objects to any provision of this Agreement, or becomes dissatisfied with the Service in any way, Customer agrees that its sole remedy, and Smilebox’s sole obligation liability, is for Customer to terminate this Agreement as aforementioned.
13. CONSEQUENCES OF TERMINATION; SURVIVALTermination of this Agreement shall not affect any rights, remedies, obligations or liabilities that accrued as of the effective date of termination. Upon termination of this Agreement:
(a) The Subscription will automatically terminate and be deemed revoked, and Customer will immediately lose all access to, and use of, the Service;
(b) Customer’s Account and related access credentials shall be terminated, and Customer shall be responsible for download or backing up any Customer Content, and Smilebox shall not be required (unless required by applicable Law) to retain any Customer Content on Smilebox’s databases and servers hosting the Service; and
(c) Customer shall promptly pay any unpaid amounts that are outstanding as of termination.
Sections 6 (Ownership) through 15 (Miscellaneous) inclusive, as well as any other provision which is intended to survive termination of this Agreement, shall survive termination.
14. GOVERNING LAW; JURISDICTION AND VENUEIf Customer is located in the United States: This Agreement (including without limitation its validity and interpretation) shall be governed by, and construed in accordance with, the laws of the State of New York, USA, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. The courts located in New York County, New York, USA shall have exclusive jurisdiction over any Dispute (defined below) that is not subject to arbitration pursuant to Section 11 (Mandatory Arbitration) and Schedule A below, and the parties hereby irrevocably and unconditionally submit to the personal jurisdiction of such courts and waive any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue.
If Customer is located outside the United States: This Agreement (including without limitation its validity and interpretation) shall be governed by, and construed in accordance with, the laws of the State of Israel, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. The courts located in Tel Aviv-Jaffa, Israel shall have exclusive jurisdiction over any Dispute (defined below), and the parties hereby irrevocably and unconditionally submit to the personal jurisdiction of such courts and waive any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue.
Regardless of any Law to the contrary, any claim or cause of action arising under, or otherwise in connection with, this Agreement must be filed within ONE (1) YEAR after such claim or cause of action arose, or else Customer agrees that such claim or cause of action will be barred forever.
15. MANDATORY ARBITRATIONIf Customer located in the United States: In the event of any claim, dispute or controversy under, or otherwise in connection with, this Agreement (a “Dispute“), such Dispute shall be resolved exclusively by arbitration in accordance with Schedule A attached hereto.
16. MISCELLANEOUS16.1. Entire Agreement. This Agreement represents the entire agreement between Smilebox and Customer with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between Customer and Smilebox with respect to such subject matter. Customer acknowledges and agrees that in entering into this Agreement it has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement, such as statements and explanations in any FAQs, summaries or explanatory guides regarding this Agreement, or other marketing material on the Smilebox website. To the extent of any conflict or inconsistency between these terms and conditions on the one hand, and the Order Form on the other hand, the former shall prevail (unless the Order Form expressly overrides a provision herein). The Section headings in this Agreement are for convenience of reading only, and shall not to be used or relied upon for interpretive purposes.
16.2 Modifications to Agreement. Smilebox may, from time to time and in its sole discretion, modify the terms and conditions of this Agreement. Except as otherwise indicated below, modifications to this Agreement will take effect at the next renewal of your Subscription and will automatically apply as of the next Renewal Term (if any). Notwithstanding the foregoing, in some cases (for example, to address compliance with Laws, or as necessary for new Features) Smilebox may specify that such modifications become effective during Customer’s then-current Term. If the effective date of a modification is during Customer’s then-current Term, and the modification is material and adverse (that is, it expands Customer’s obligations and liabilities in a material way) and Customer objects to the modification, then, as Customer’s sole remedy, and Smilebox’s sole obligation and liability, Customer may terminate the Agreement upon written notice to Smilebox and receive a pro-rated refund of any pre-paid Fees hereunder based on the remaining period of the then-current Initial Term or Renewal Term (as the case may be); provided, however, that in order to exercise this right, Customer must provide Smilebox with written notice of its objection and termination (which notice must include an explicit reference to the modification to which Customer objects) within thirty (30) days of Smilebox’s notice of the modification.
16.3. Age Representation. Customer represents that it is at least thirteen (13) years old, but in any event of a legal age to form a binding contract. Children under the age of thirteen (13) are not permitted to purchase a Subscription or submit an Order Form. If Customer is between thirteen (13) and eighteen (18) years old, Customer’s review of (and any performance under) this Agreement must involve Customer’s parent or guardian.
16.4. Smilebox Affiliates. At Smilebox’s sole discretion, any Smilebox obligation hereunder may be performed (in whole or in part), and any Smilebox right or remedy may be exercised (in whole or in part), by a Smilebox Affiliate. Without limiting the generality of the foregoing, Smilebox may assign its right to invoice and receive payments under this Agreement to a Smilebox Affiliate.
16.5. GDPR. Customer hereby represents and warrants that it will: (i) provide all appropriate notices, (ii) obtain all required informed consents and/or have any and all ongoing legal bases, and (iii) comply at all times with any and all applicable privacy and data protection Laws (including, without limitation, the EU General Data Protection Regulation (“GDPR”)), for allowing Smilebox to use and process Customer Data in accordance with this Agreement (including, without limitation, the provision of such Customer Data to Smilebox (or access thereto) and the transfer of such Customer Data by Smilebox to its Affiliates, and subcontractors, including transfers outside of the European Economic Area), for the provision of the Service and the performance of this Agreement. To the extent that Customer needs a data processing agreement, Customer shall download Smilebox’s Data Processing Agreement (“DPA”) available on the Smilebox website and return it signed to Smilebox as described therein. In the event Customer fails to comply with any data protection or privacy Law (such as the GDPR) and/or any provision of the DPA, and/or fails to return an executed version of the DPA to Smilebox, then: (a) to the maximum extent permitted by law, Customer shall be solely and fully responsible and liable for any such breach, violation, infringement, and/or processing of personal data without a DPA by Smilebox and/or its Affiliates (including, without limitation, their respective employees, officers, directors, subcontractors and agents); (b) in the event of any claim of any kind related to any such breach, violation, or infringement, and/or any claim related to processing of personal data without a DPA, Customer shall defend, hold harmless and indemnify Smilebox and its Affiliates (including, without limitation, their employees, officers, directors, subcontractors and agents) from and against any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees; and (c) any limitations on, or exclusions of, of Customer’s liability under this Agreement shall not apply in connection with the above subparagraphs (a) and (b).
16.6. Assignment. Smilebox may assign this Agreement (or any of its rights and/or obligations hereunder) without Customer’s consent, and without notice or obligation to Customer. This Agreement is personal to Customer, and Customer shall not assign (or in any other way transfer) this Agreement (or any of its obligations or rights hereunder) without Smilebox’s express prior written consent. Any prohibited assignment shall be null and void.
16.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties hereto agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
16.8. Third Party Software Rights. If Customer’s authorized use of the Service results in any software code being distributed to Customer, and such software code is owned by a third party (“Third Party Software”), and is subject to its own licensing terms or notices (“Third Party Software Terms”) that render ineffective (or otherwise prohibit) any usage restrictions in this Agreement, then nothing in this Agreement is intended to prohibit (and nothing in this Agreement shall be construed as prohibiting) Customer from engaging in such restricted uses.
16.9. Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
16.10. Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by Customer, emails will be acceptable; for waivers by Smilebox, the writing must be duly signed by an authorized representative of Smilebox) and shall be valid only in the specific instance in which given.
16.11. Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
16.12. Notices. Customer agree that Smilebox may send Customer notices by email, via Customer’s Account, by regular mail, and/or via postings on or through the functionality of the Service. Except as stated otherwise in this Agreement or required by Law applicable to Customer, Customer agrees to send all notices to Smilebox, Customer Support.
16.13. No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as Smilebox Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
16.14. U.S. Government Rights. The Service is “commercial computer software” and the Documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. If Customer is an agency, department, employee or other entity of the United States Government, then Customer’s access to and use of the Service shall be subject solely to the terms and conditions of this Agreement.
16.15. Export Compliance. Customer represents and warrants (on behalf of itself and its User Account, if applicable) that: (a) it is not a resident of (or will use the Service in) a country that the U.S. government has embargoed for use of the Service, nor is Customer named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to us. In the event Customer breaches this Section (in whole or in part), or otherwise violates any Export Control Laws (defined below) in connection with the Service, Customer agrees to indemnify and hold harmless Smilebox and all Smilebox Affiliates (including ours and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Smilebox or an Smilebox Affiliate (or such persons) as a result of such breach or violation. “Export Control Laws” means all applicable export and re-export control Laws applicable to Customer and/or Smilebox, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
16.16. Force Majeure. Smilebox shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond Smilebox’s reasonable control. For the avoidance of doubt, any problems relating to the hosting of the Service shall not be deemed within Smilebox’s reasonable control.
16.17. Third Party Charges. Customer’s use of the Service may require and utilize an internet connection or data access. To the extent that third party service provider or carrier charges for internet or data usage are applicable, Customer shall be solely responsible and liable for those charges.
16.18. Language; Electronic Contract. The language of this Agreement is expressly agreed to be the English language. By entering into the Agreement, Customer hereby irrevocably waives to the maximum extent legally permitted, any Law applicable to Customer requiring that the Agreement be localized to meet Customer’s language (as well as any other localization requirements), or requiring an original (non-electronic) signature or delivery or retention of non-electronic records. Smilebox may be able (but is not obligated) to provide Customer with copies of this Agreement on written request; however, please be sure to print a copy of this Agreement for Customer’s own records.
SCHEDULE AMandatory Arbitration
(Located in the United States)
Customer and Smilebox agree to resolve any Dispute only by FINAL AND BINDING BILATERAL ARBITRATION in accordance with the below; except, however, that:
(a) Each party retains the right to bring an individual action in a small claims court; (b) Each party retains the right, at any time and in any court worldwide of competent jurisdiction, to seek equitable relief to protect any Intellectual Property Rights; and (c) Nothing herein precludes Customer from bringing issues to the attention of federal, state, or local agencies (and such agencies can, if the Law allows, seek relief against Smilebox).
The Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“FAA”) (and not any state law concerning arbitration) applies to this agreement to arbitrate, and governs all questions of whether a Dispute is subject to arbitration.
Capitalized terms not defined in this Schedule shall have the meanings given to them in the main body of the Agreement to which this Schedule is attached.
Unless Customer and Smilebox expressly agree otherwise in writing in respect of a given Dispute, the arbitration shall be taken place in-person in New York City, New York, USA, and will be administered by Judicial Arbitration and Mediation Services, Inc. (“JAMS”), before a single arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Streamlined Rules”), as modified by this Agreement. The arbitrator must honor the terms and conditions of this Agreement (including, but not limited to, all liability exclusions and limitations), and shall not make any award or decision that is contrary to, or in excess of what, this Agreement provides.
The arbitrator’s decision must be in writing, and will include the essential findings and conclusions upon which his/her award is based. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. In the event any litigation should arise between Customer and Smilebox in any court of competent jurisdiction in a proceeding to vacate or enforce an arbitration award, CUSTOMER AND SMILEBOX HEREBY IRREVOCABLY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the proceeding be resolved by a judge. The arbitrator may award declaratory or injunctive relief only in favor of the plaintiff/claimant and only to the extent necessary to provide relief warranted by the plaintiff’s/claimant’s individual claim.
Regardless of who initiates arbitration for a Dispute, Customer will always remain responsible for its costs relating to counsel, experts, witnesses, and travel to the arbitration. If Customer initiates arbitration for a Dispute, Customer will be required to pay $250 of the fee required to initiate the arbitration and Smilebox will pay any remaining JAMS Case Management Fees and all professional fees for the arbitrator’s services. If Smilebox initiates an arbitration for a Dispute, Smilebox will pay all administrative fees and costs related to the arbitration, including all professional fees for the arbitrator’s services.
All aspects of the arbitration proceeding, including but not limited to the decision and award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain its confidentiality, unless (and in such cases, only the extent) otherwise required by applicable Law. This paragraph shall not prevent a party from submitting to a court of competent jurisdiction any information necessary to enforce an arbitration award, or to seek equitable relief.
CUSTOMER ACKNOWLEDGES AND AGREES THAT, EVEN IF ANYTHING IN THE JAMS STREAMLINED RULES (OR OTHER JAMS RULES) PERMIT OTHERWISE:
(A) CUSTOMER AND SMILEBOX ARE HEREBY EACH IRREVOCABLY WAIVING THE RIGHT TO A TRIAL BY JURY, AS WELL AS THE RIGHT TO PARTICIPATE (FOR EXAMPLE, AS A CLASS REPRESENTATIVE OR CLASS MEMBER) IN A CLASS ACTION, CLASS ARBITRATION, OR OTHER CLASS-WIDE OR REPRESENTATIVE ACTION OR PROCEEDING, AND THAT CUSTOMER MAY ONLY BRING A CLAIM IN ITS INDIVIDUAL CAPACITY; AND
(B) NO ARBITRATION WILL BE JOINED TO ANY OTHER ARBITRATION, AND THE ARBITRATOR MAY NOT CONSOLIDATE ANY INDIVIDUAL PARTY’S DISPUTE WITH ANY OTHER PARTY’S DISPUTE.
OPT-OUT: Customer can choose to reject this agreement to arbitrate (“Opt-out”) by emailing OPT-OUT@smilebox.com within thirty (30) days after the date Customer enters this Agreement for the first time. The Opt-out email Customer sends must state that Customer does not agree to this agreement to arbitrate and must include Customer’s name, address, phone number, and email address. Providing an Opt-out notice is the only way Customer can opt-out of this agreement to arbitrate. If Customer does Opt-out of this agreement to arbitrate, all other provisions of the Agreement will continue to apply.