Terms of Service
TERMS OF SERVICE
These Terms of Service ("Terms of Service") govern your access to and use of Smile Inc. (the "Company", "us", "we", and "our") services including the Smile.io Platform and any other services, plans, features, products, content, applications, software, maintenance and training offered by us from time to time (collectively the "Services") identified in one or more Company subscription agreements ("Subscription Agreement" or "Subscription Agreements") or made available by us from time to time.
Unless otherwise provided in the Subscription Agreement, Services are purchased by Clients and provided as subscriptions. Subject to your compliance with this Agreement and your payment of any applicable fees, the Company grants you a non-transferable, non-exclusive, worldwide right to access and use the purchased Services during the subscription term set out in a Subscription Agreement ("Subscription Term").
NOT PROFESSIONAL ADVICE
We provide online tools and materials to assist you with the preparation, execution and storage of your own loyalty programs and related information, and we may (if provided for in the Subscription Agreement) provide advice regarding the design, strategy and use of such programs and information. However, the documents and other materials available through the Services and any advice provided, (collectively, the "Service Materials") are for informational purposes only; they are not guaranteed to be correct, complete or up-to-date, and all final decisions about the design, strategy and use of any program will be yours. We do not review the Service Materials or any information you input or provide to us for accuracy or sufficiency. You understand that our providing of the Services to you does not constitute any guarantee of a particular outcome or otherwise make us responsible in any way for the success or failure of any program you undertake in connection with the Services.
PASSWORDS AND SECURITY
Services that we provide may be subject to usage limits and restrictions, which may be specified in the Subscription Agreement including, without limitation, the locations at or through which you can use the Services, the number of allowable users, usage volumes, limits on the number of recipients, etc. You agree to use the Services within the usage limits set out in the Subscription Agreement. It is your responsibility to ensure that you do not exceed those limits and restrictions. We have the right, but not the obligation, to monitor or remotely audit your use of any Service. Extra charges will apply if you exceed any usage limits at our then-current usage fees.
NECESSARY EQUIPMENT TO USE THE SERVICES
You are responsible for obtaining and maintaining all telecommunications, broadband, computer hardware, software, equipment and services needed to connect to, access and use the Services.
FEES AND PAYMENT
You agree to pay all fees set out in a Subscription Agreement. All fees are non-cancellable and non-refundable and are based on Services subscriptions purchased and not actual usage. Extra charges will apply if you exceed any usage limits at our then-current usage fees. Unless otherwise agreed between you and us, charges may be paid by wire transfer, standing order, cheque or credit card. Credit card payments will be subject to an additional 3% service fee. For the avoidance of doubt, you shall not be entitled to any refund in the event of unused Services.
Unless otherwise set out in the Subscription Agreement, Service fees are payable annually in advance within 30 days after the date of invoice. All fees are exclusive of taxes, levies or duties imposed by taxing authorities, and Client shall be responsible for payment of all such taxes, levies or duties (excluding taxes based on the Company's income), even if such amounts are not listed on a Subscription Agreement. Client shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties without set-off or deduction.
Unpaid invoices that are not the subject of a written good faith dispute are subject to interest at a rate of 1.5% per month on the outstanding balance, or the legal maximum interest rate, whichever is lower, plus all reasonable expenses of collection, in addition to any other remedies we may have.
We reserve the right to immediately terminate the Services if: (i) the billing or contact information provided by you is false or fraudulent; or (ii) you fail to make any payment due within ten business days after we have provided you with notice of such failure. Any suspension of the Services by us under this section shall not relieve you of your payment obligations under this Agreement. We will not be liable to you nor to any third party for any suspension of the Services resulting from your non-payment of fees.
CONTENT AND LICENSE
The Services contains Content owned by the Company, its suppliers or licensors ("Content"). The Company, its suppliers and licensors own and retain all rights, including all intellectual property rights, in and to the Services and the Content. The Services and Content are protected by copyright, trademark, patent, trade secret and other laws.
OWNERSHIP AND LICENSE
The Services are licensed and not sold to you. All rights not expressly granted to you in this Agreement are reserved and retained by us. You may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, use or sell any Content or other Content (other than Customer Content) appearing on or through the Services. You must not modify, build upon or block any portion or functionality of the Services. We grant you a limited, revocable, non-sublicensable license to reproduce and display the Content (excluding software code) in connection with using the Services during the Subscription Term. No Service, nor any part of any Service, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent. You may not misuse the Services. You may use the Services only as permitted by law. The licences granted by us terminate if you do not comply with this Agreement.
The Company hereby grants to Client a non-exclusive, non-transferable, worldwide right during the Subscription Term to access and use the user documentation relating to the operation and use of the Services that are provided by the Company to Client under this Agreement, as updated by the Company from time to time ("Documentation"). The Company, its suppliers and licensors own and retain all rights in the Documentation. The Documentation is protected by copyright, trademark, patent, trade secret and other laws.
We may provide the Company software products ("Software") for use in connection with the Service. We grant you a limited, personal, worldwide, non-sublicensable, non-transferable, non-exclusive license to install and execute the Software on machines operated by or for you solely to permit you to use the Services during the Subscription Term. Any Software is licensed and not sold. Software may include code that is licensed under third party license agreements, including open source, made available or provided with the Software, as applicable. The Company, its suppliers and licensors own and retain all rights in the Software. The Software is protected by copyright, trademark, patent, trade secret and other laws.
Client shall not (and shall not permit others to): (i) license, sub-license, sell, transfer, distribute or share the Services, Software or Documentation or make any of them available for access by third parties; (ii) create derivative works based on or otherwise modify the Services, Software or Documentation; (iii) disassemble, reverse engineer or decompile the Services or Software or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services; (iv) access the Service, Software or Documentation in order to develop a competing product or service; (v) use the Service, Software or Documentation to provide a service for others; (vi) use the Smile.io Platform to operate more or different type of applications than permitted under the applicable Subscription Agreement; (vii) remove or modify a copyright or other proprietary rights notice on or in the Services, Software or Documentation; (viii) use a computer or computer network to cause physical injury to the property of another; (ix) violate any applicable law or regulation; (x) disable, hack or otherwise interfere with any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the Services; (xi) include, send, store or run software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs from the Services; (xii) cause a computer to malfunction, regardless of how long the malfunction persists; or (xiii) alter, disable, or erase any computer data, computer programs or computer software without authorization.
If you or any of your customers ("Customers") sends information to us, for example feedback, comments or suggestions, you grant us a perpetual, sub-licenseable, royalty-free, transferable license to use, modify and incorporate this information into our products and Services. You also agree to waive all moral rights in and to that information.
We are entitled to modify or update the Services from time to time in order to adapt it technically, to change menu guidances or layouts or to expand or limit functionality.
CLIENT CONTENT AND LICENSE
As an Account holder, you may submit and publish Client Content on the Smile.io Platform. Client Content is the Content that you upload to the Service. You are exclusively responsible for all Client Content and the consequences of submitting and publishing your Content on the Service. Please choose carefully the Content that you post on the Service. We do not verify the accuracy, quality, content or legality of Client Content. We may, but are under no obligation to, monitor, view, analyze or edit any Client Content. We are not responsible for preventing or identifying infringement of intellectual property rights or non-compliance with Applicable Laws. The Company will not be liable, directly or indirectly, in any way for any damage or loss caused or alleged to be caused by or in connection with Client Content.
RESPONSIBILITY TO OBTAIN CONSENTS
You are responsible for obtaining all necessary consents, licenses and waivers required to create, record, submit, publish and use Client Content in connection with the Services. These may include consents, licenses and waivers from copyright, trademark and other intellectual property owners, and any other individuals involved in creating Client Content. In addition, you are responsible to pay all applicable royalties, fees and other amounts owing to any Person in connection with the use of any Client Content.
OWNERSHIP AND LICENSE
As between you and us, you retain all rights of ownership in the Client Content. By uploading, displaying or publishing your Content to the Service, you grant us a worldwide, royalty-free, fully paid-up, non-exclusive, sublicensable and transferable license to use, reproduce, modify, distribute, display and perform your Content in connection with the Services. This license is necessary for the Company to perform the Services. For example, without the right to modify Client Content, we would not be able to format Content to satisfy technical requirements for online display. This license allows us to: (i) deliver Client Content in accordance with the preferences set by Client utilizing the Smile.io Platform; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of Client Content; (iii) use, enhance, personalize, exhibit, broadcast, publish, publicly display, publicly perform, distribute, create derivate works of, promote, copy, store, and/or reproduce (in any form) Client Content on or through the Service; and (iv) utilize Client Content to test the Company's internal technologies and processes. You also grant us, and allow us to grant each Customer or other user of the Services, a non-exclusive license to view Client Content through the Service. We reserve the right to retain (but not display, distribute or publish) server copies of Client Content that have been removed or deleted from the Services.
REPRESENTATIONS AND WARRANTIES
You represent and warrant that: (i) you own or have the necessary licenses, rights, consents and permissions to use and publish the Content you submit; (ii) the uploading of your Content on the Service and the licenses granted to the Company under this Agreement do not and will not violate the rights of any Person; and (iii) no payments of any kind shall be due by the Company to any organization for the use or distribution of Client Content.
Some Content is prohibited on the Service. You agree that you will not upload or use in connection with the Service any prohibited Content including, without limitation, Content that: (i) is pornographic, sexually explicit or offensive or contains a link to an adult website; (ii) contains graphic or gratuitous violence; (iii) conveys a message of hate against any individual or group; (iv) encourages or glorifies drug use; (v) is predatory in nature, or is submitted for the purpose of harassment or bullying; (vi) is highly repetitive and/or unwanted including "Spam" messages; (vii) promotes or incites racism, bigotry, hatred or physical harm of any kind against any group or individual; (viii) constitutes or promotes information that Client knows is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (ix) furthers or promotes criminal activity or provides instructional information about illegal activities; or (x) violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any Person. We reserve the right to investigate and take appropriate action against anyone who, in our sole discretion, violates these provisions including removing the offending Content without prior notice, terminating or suspending Client's Account or access to the Service and/or reporting such Content or activities to law enforcement authorities.
CONTENT PRESERVATION AND DISCLOSURE
We may preserve and store Client Content and/or disclose Client Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal processes; (ii) comply with this Agreement; (iii) respond to claims that any Client Content violates the rights of any Person; or (iv) protect the rights, property, or personal safety of the Company, Customers and/or the public.
ANONYMIZED USER DATA
ANONYMIZED USER DATA
In using the Services you hereby grant the Company full rights to anonymize your Service Data and information so that it does not identify you as a user, identify specific transactions carried out by you, or contain any other confidential user information ("Anonymous Data"). You agree that the Company: (i) has full ownership over Anonymous Data; (ii) has full license to create derivative works and extract information from Anonymous Data; (iii) has full license to combine Anonymous Data (hereafter "Aggregate Data"); (iv) has the right to use the Aggregate Data on an Aggregate Basis (as defined below) only in the furtherance of the Company's business; and (v) may disclose, sell and publish Aggregate Data on an Aggregate Basis to any party through any means. "Aggregate Basis"refers to the combination of parts of information collected or processed from the user, not containing the user's name, with other information from any or all other users of the Services. The Company asserts that user information used on an Aggregate Basis will not be used in a manner that discloses any individually identifiable information about the user or any specific transactions in which the user has engaged.
RESPONSIBILITY TO OBTAIN CONSENTS
You are exclusively responsible for obtaining all necessary rights, releases and consents from Customers and other third parties to allow Client Data and Customer Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant the Company the rights set out in this Agreement to us. We rely on you to obtain all consents from, and provide all disclosures to, Customers as required under Applicable Law. By using the Services, you represent and warrant to the Company that you have obtained all necessary rights, releases and consents from Customers and other third parties to allow Client Data and Customer Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant us the rights set out in this Agreement.
PRIVACY AND SECURITY
The Services are provided by us from data center facilities to which Users have remote access via the internet in conjunction with certain offline components provided by us under this Agreement. We may use third party service providers to provide limited parts of the Services from time to time, including data storage and processing, and you consent to us subcontracting these services to those third parties. We implement security procedures to help protect your Customer Data from security attacks. However, you understand that use of the Services necessarily involves transmission of your Client Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of your Client Data lost, altered, intercepted, copied or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your Client Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers. If you become aware of any security breach in the Services, you agree to promptly notify us. We agree to notify you in the event of a detected security breach. All data at rest is encrypted and all data in transit is encrypted.
Technical processing and transmission of the Service, including Client Content, may involve: (i) transmissions over various networks; and/or (ii) changes to conform and adapt to technical requirements of connecting networks or devices. Use of or connection to the internet provides the opportunity for unauthorized Persons to circumvent security precautions and illegally gain access to the Service, the Client Data, the Customer Data or the Client Content. We do not guarantee the privacy, security or authenticity of any content, data or information transmitted over or stored in any system connected to the internet.
MAINTENANCE AND REPAIRS
We use commercially reasonable efforts to ensure that availability of the Services will be uninterrupted and that transmissions will be error-free. However, due to the nature of the internet, this cannot be guaranteed. Also, your access to Services may be occasionally suspended or restricted to allow for repairs, maintenance or the introduction of new facilities or services. We will attempt to limit the frequency and duration of any such suspension or restriction, and we will use commercially reasonable efforts to alert or notify you in the event of any scheduled or non-scheduled suspension of Services. Due to the nature of technical outages, we cannot guarantee notice prior to unplanned outages. We will not be held responsible for any delay or failure to comply with our obligations under these conditions if the delay or failure arises from any cause which is beyond our reasonable control.
THIRD PARTY SERVICES
THIRD PARTY SERVICES
The Services contain features or functionality designed to interact and/or integrate with software, applications or services that are provided by a Person other than the Company ("Third Party Services"). To use these features, you may be required to obtain access to such Third Party Services from their providers, pay fees to the provider of such Third Party Services and/or agree to separate license agreements or terms with those providers. In order to use the Services, you may be required to grant us access to your Accounts to such Third Party Services. You expressly permit us to share Client Content in conjunction with the Third Party Services and Client Data with Third Party Service providers. The Third Party Services may import or export data related to your Account, activity and/or content and otherwise gather data from you and your Customers.
ACCESS TO DATA BY THIRD PARTIES
If you use Third Party Services, your data may be transmitted outside of the Company system and the provider of the Third Party Services may be able to obtain access to your Client Data in the Company's systems through the Company application programming interface. This may result in the disclosure, modification or deletion of your Client Data by the Third Party Service provider. The Third Party Service provider and its agents may collect and use data pertaining to your configuration and use of the Third Party Service. We are not responsible for any transmission, collection, disclosure, modification, use or deletion of your Client Data, as described in this section, by or through Third Party Services or their providers or any of its agents and partners.
DISCLAIMER OF WARRANTIES
DISCLAIMER OF WARRANTIES
All Services are provided "as is" and on an "as available" basis. Neither the Company nor its suppliers or representatives make any warranties, express or implied, statutory or otherwise, including but not limited to warranties of merchantability, title, fitness for a particular purpose or noninfringement. The Company makes no representation, warranty or guarantee that the Services will meet Client's or any Customer's requirement or expectation, that will be accurate, complete or preserved without loss, or that the Services will be timely, secure, uninterrupted or error-free. The Company does not guarantee that security measures will be error-free and will not be responsible or liable for unauthorized access beyond its reasonable control. The Company will not be responsible or liable in any manner for any Client properties, third party products, third party content, or non-Company services (including for any delays, interruptions, transmission errors, security failures, and other problems caused by these items), for regulated data received from the Client in breach of this Agreement, for the collection, use and disclosure of Data authorized by this Agreement or for decisions or actions taken (or not taken) by Client based upon the Services. Client acknowledges that the Company is not a business associate or subcontractor. The disclaimers in this section shall apply to the maximum extent not prohibited by applicable law, notwithstanding anything to the contrary herein. Client may have other statutory rights. However, any statutorily required warranties under applicable law, if any, shall be limited to the shortest period and maximum extent permitted by law.
BY THE COMPANY
We will indemnify, defend and hold harmless Client from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against the Client to the extent based on an allegation that the Company's technology used to provide the Services to the Client infringes or misappropriates any copyright, trade secret, patent or trademark right of a third party that is issued or registered in Canada or the United States. In no event will we have any obligations or liability under this section arising in whole or in part from any content, information or data provided by Client, Customer or other third parties. The Company shall not be required to indemnify Client in the event of: (a) modification of the Services by Client, its employees, or contractors in conflict with Client's obligations or as a result of any prohibited activity as set forth herein; (b) use of the Services in a manner inconsistent with the Documentation; (c) use of the Services in combination with any other application, product, or service not provided by the Company if such claim would not have occurred without such combination; or (d) use of the Services in a manner not otherwise contemplated by this Agreement.
Client shall indemnify, defend and hold harmless the Company from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys' fees) arising out of any claim by a third party against the Company or its affiliates regarding: (i) Client Content, Client Data or Customer Data; (ii) failure by the Client to obtain any of the necessary consents required by Customers under this Agreement; (iii) Client's use of the Services in violation of this Agreement; and/or (vi) violations of Client's obligations of privacy to any Person.
If we believe the Services infringe or may be alleged to infringe a third party's intellectual property rights, then we may: (i) obtain the right for you (at our expense) to continue using the Service; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If we do not believe that the options described in this section are commercially reasonable, then we may suspend or terminate Client's use of the affected Services (with a pro-rata refund of prepaid fees for the Services).
The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (ii) the other party may join the defense with its own counsel at its expense.
The indemnities above are the Company's and Client's only remedy under this Agreement for third party infringement claims and actions.
LIMITATIONS OF LIABILITY AND DAMAGES
LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COMPANY'S OR ITS SUPPLIERS' TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CLIENT TO THE COMPANY FOR THE SERVICE IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 11 EXCLUDES EITHER PARTY'S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY'S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 11 SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 11 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY COMPANY TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (together "Confidential Information" of the Disclosing Party). Such information includes, without limitation, information relating to pricing of Services, Client Data and your ID. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as permitted in this Agreement) or divulge to any third person such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of this Agreement or any Confidential Information that the Receiving Party can demonstrate that: (i) is or becomes generally known to the public; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party; (iii) is received from a third party without any obligation of confidentiality to a third party or breach of any obligation of confidentiality to the Disclosing Party; (iv) was independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information; or (v) is required by law. The Receiving Party shall promptly return to the Disclosing Party or destroy (with certification of such destruction provided by the Receiving Party upon request) all Confidential Information of the Disclosing Party in its possession or control upon request from the Disclosing Party.
TERM AND TERMINATION
This Agreement shall commence on the date set out in the first Subscription Agreement and shall remain in effect through the end of the Subscription Term in any current Subscription Agreement, unless terminated earlier pursuant to the terms of this Agreement (the "Initial Term"). Your subscription will automatically renew at the end of the Initial Term for one additional 12-month term (the "Renewal Term") unless you provide us with written notice of your intent not to renew at least ninety (90) days before the expiration of the Initial Term. You must cancel the Services at least ninety (90) days prior to the expiration of the Initial Term in order to avoid being billed for the Renewal Term. Payment for Services for the Renewal Term is due on the first day of the Renewal Term and will automatically be charged to the account that you used for the original subscription. The renewal price will be the same price as for the prior 12-month subscription term unless we give you advance notice of a price change.
Either party may terminate this Agreement effective immediately upon written notice: (i) if the other party materially breaches a material obligation under this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement or an assignment for the benefit of creditors.
EFFECT OF TERMINATION
Upon expiration or other termination of the Service for any reason, your right to access and use the Service shall terminate. If you terminate this Agreement or any Subscription Agreement solely due to a material breach of this Agreement by us, we agree to refund all prepaid fees for the remaining portion of the Subscription Term for the terminated Service within thirty (30) days after the date of termination. If we terminate this Agreement or any Subscription Agreement for your material breach, all fees set out on such Subscription Agreement shall be immediately due and payable.
RETURN OF CLIENT DATA
At the end of the Subscription Term, you will be entitled to extract Client Content stored using the Services, Client Data and Non-Anonymized Customer Data for a period of seven (7) days following termination (the "Extraction Grace Period"). Following the Extraction Grace Period, the Company shall have the right to delete all of Client Content, Client Data and Non-Anonymized Customer Data at any time and cancel your Account with us. You acknowledge and agree that archived versions of the Services may include archived copies of Client Content, Client Data and Non-Anonymized Customer Data which may be retained by us for an archive cycle.
Upon termination of this Agreement for any reason, Client shall pay all amounts owed hereunder. Sections 3.3, 4.1, 4.6, Article 9, Article 10, Article 11, Article 12, Article 13 and Article 14 of this Agreement, together with any other provision required for their construction or enforcement, shall survive termination of this Agreement for any reason.
Capitalized terms used in this Agreement, and not otherwise defined in this Agreement, shall have the following meanings:
"Account" means the Smile.io account, which includes a username and password, used by Client to access and use the Service.
"Applicable Laws" means all statutes, codes, rules, regulations, by-laws, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards, policies, guidelines, or any provisions of the foregoing, including general principles of common and civil law and equity, binding on or affecting the Person referred to in the context in which such word is used.
"Business Partners" means affiliates, licensors, or clients, customers, other users and other third parties that the Company does business with.
"Client Data" means non-anonymized electronic data pertaining to Client, the Users and the Customers that is collected and/or processed using the Service, including personal information, login credentials, and other information that relates to such parties' use of the Service.
"Content" means any all content, data and other materials including, without limitation, images, trademarks, html e-mail codes, live streams, documentation, reports, materials, files, text, logos, artwork, graphics, pictures, advertisements, works, works of authorship or any other intellectual property contained in any such materials.
"Customer" means any customer that uses or views the Client Content, including your customers.
"Customer Data" means the electronic data concerning the characteristics and activities of Customer (including personal information of such Customer) collected and analyzed by the Service relating to such Customer use or viewing of the Client Content.
"Person" means a natural person or any legal, commercial or governmental entity, such as, but not limited to, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any person acting in a representative capacity.
"Product Overview" means the overview of the Services to be provided to a Client set out in the Subscription Agreement.
"Users" means Client's employees, representatives, consultants, contractors or agents who are authorized to use the Services for Client's benefit and have unique user identifications and passwords for the Services.
"Smile.io Platform" means the code, technology and servers used in the operation and provision of the Services and includes the Documentation and Software.
You may not assign this Agreement, nor any of the rights or obligations arising thereof, in whole or in part, to any third party without our prior written consent. We may assign this Agreement, as well as any of our obligations or rights, to a successor entity resulting from a merger, acquisition or consolidation involving the Client.
In the event of any conflict between these Terms of Service and a Subscription Agreement, the terms of the Subscription Agreement shall govern.
Except as otherwise provided herein, all notices shall be in writing and deemed given upon: (i) personal delivery; (ii) when received by the addressee if sent by an internationally recognized overnight courier (receipt requested); (iii) the second business day after mailing; or (iv) the first business day after sending by email, except that email shall not be sufficient for notices of termination or regarding a Claim. Notices shall be sent to the parties as set forth on the signature page of this Agreement or as otherwise agreed to by the parties in writing.
You permit us to list you as a client and use your standard logo for our promotional and marketing use during the Subscription Term.
Except for your obligation to pay fees for the Services, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include, without limitation, accidents, acts of God, labour disputes, actions of any government agency, shortage of materials, acts of terrorism or the stability or availability of the Internet or a portion of it.
WAIVER AND AMENDMENT
A waiver of any right is only effective if it is in writing and only against the party who signed such writing and for the circumstances given. Any modification of this Agreement must be in writing and signed by both parties.
RELATIONSHIP OF THE PARTIES
The parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship.
GOVERNING LAW; VENUE; TIME FOR BRINGING ACTION
This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable in that Province. Any action or proceeding arising from or relating to this Agreement may only be brought in the courts located in Kitchener, Ontario and each party irrevocably submits to such exclusive jurisdiction and venue. The United Nations Convention on Contracts for the International Sale of Goods (also called the Vienna Convention, and which is cited in the statutes of Canada as the International Sales of Goods Contracts Convention Act) will not apply to this Agreement or the transactions contemplated by this Agreement. No cause of action arising hereunder or relating hereto may be brought more than one (1) year after it first accrues. It is the express will of the parties that this agreement and all related documents have been drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.
The Services are controlled, operated and administered by the Company (or its licensees) from its offices within Canada and is not intended to subject the Company to the laws or jurisdiction of any state, country or territory other than those of Canada. Those who choose to access the Services do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. You are also subject to Canadian export controls and are responsible for any violations of such controls, including without limitation any Canadian embargoes or other federal rules and regulations restricting exports. Additional charges such as customs, fees, taxes, and import duties are the responsibility of the buyer. Without limiting the foregoing, the Company may limit the availability of the Services, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
If you have any questions about these Terms of Service or if you wish to provide any feedback with respect to the Services, please contact us at: firstname.lastname@example.org