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Please review this Agreement carefully, including the Arbitration provision in Section 15, which describes how disputes will be resolved between us, and that no class actions may be brought under this Agreement.
SmileBack may modify this Agreement from time to time and such modification shall be effective upon posting by SmileBack on the SmileBack Website (www.SmileBackApp.com). All material modifications will apply prospectively only. Your continued use of the SmileBack Services after SmileBack posts a revised Agreement signifies your acceptance of the revised Agreement. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes.
Please choose carefully the information you post on or through the SmileBack Services and that you provide to other Users. Your SmileBack profile may not include any form of Prohibited Content, as outlined in Section 8 below. Despite this prohibition, information, materials, products or services provided by other SmileBack Members (for instance, in their profile) may, in whole or in part, be unauthorized, impermissible or otherwise violate this Agreement, and SmileBack assumes no responsibility or liability for this material. If you become aware of misuse of the SmileBack Services by any person, please notify SmileBack by sending an email to firstname.lastname@example.org.
SmileBack reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including private messages) by you, or to deny, restrict, suspend, or terminate your access to all or any part of the SmileBack Services at any time, for any or no reason, with or without prior notice or explanation, and without liability. SmileBack expressly reserves the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the SmileBack Services if SmileBack determines, in its sole discretion, that you have violated this Agreement or pose a threat to SmileBack and/or its Users.
1 Eligibility. Use of the SmileBack Services is void where prohibited. By using the SmileBack Services, you represent and warrant that (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 18 years of age or older; and (d) your use of the SmileBack Services does not violate any Applicable Law. Your profile may be deleted, and your Membership may be terminated without warning, if we believe that you are under 18 years of age, if we believe that you are under 18 years of age and you represent yourself as 18 or older, or if we believe you are over 18 and represent yourself as under 18.
3 Term. This Agreement, and any posted revision to this Agreement, shall remain in full force and effect while you use the SmileBack services. You may terminate your Membership at any time, for any reason, by emailing us at email@example.com. SmileBack may terminate your Membership at any time, for any or no reason, with or without prior notice or explanation, and without liability. Furthermore, SmileBack reserves the right, in its sole discretion, to reject, refuse to post or remove any posting (including, without limitation, private messages, emails and instant messages by you, or to deny, restrict, suspend, or terminate your access to all or any part of the SmileBack Services at any time, for any or no reason, with or without prior notice or explanation, and without liability. SmileBack expressly reserves the right to remove your profile and/or deny, restrict, suspend, or terminate your access to all or any part of the SmileBack Services if SmileBack determines, in its sole discretion, that you have violated this Agreement or pose a threat to SmileBack, its employees, business partners, Users and/or the public. Even after Membership is terminated, this Agreement will remain in effect, including Sections 6-18.
4 Fees. You acknowledge that SmileBack reserves the right to charge for any portion of the SmileBack Services and to change its fees (if any) from time to time in its discretion. If SmileBack terminates your Membership because you have breached the Agreement, you shall not be entitled to the refund of any unused portion of fees or payments (if any).
5 Password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, password or other identifiers of another Member at any time or to disclose your password to any third party. You are solely responsible for any and all use of your account.
6 Use by Members. The SmileBack Services are for the personal use of Members and may be used for promotional purposes as well, but direct commercial endeavors may only be used if they are specifically endorsed or authorized by SmileBack. SmileBack reserves the right to remove commercial content in its sole discretion. Illegal and/or unauthorized use of the SmileBack Services, including, without limitation, collecting usernames, user id numbers, and/or email addresses of Members by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the SmileBack Website, or employing third party promotional sites or software to promote profiles for money, is prohibited. Commercial advertisements, affiliate links, and other forms of unauthorized solicitation may be removed from Member profiles without notice or explanation and may result in termination of Membership privileges. SmileBack reserves the right to take appropriate legal action, including, without limitation, referral to law enforcement, for any illegal or unauthorized use of the SmileBack Services.
7 Proprietary Rights in Content on SmileBack.
1 SmileBack does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, "Content") that you post on or through the SmileBack Services. After posting your Content to the SmileBack Services, you continue to retain any such rights that you may have in your Content, subject to the limited license herein. By displaying or publishing ("posting") any Content on or through the SmileBack Services, you hereby grant to SmileBack a limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and distribute such Content solely on or through the SmileBack Services, or distributing part or all of the SmileBack Services in any media formats and through any media channels. After you remove your Content from the SmileBack Services, we will cease distribution as soon as practicable, and at such time when distribution ceases, the license will terminate.
2 The license you grant to SmileBack is non-exclusive (meaning you are free to license your Content to anyone else in addition to SmileBack), fully-paid and royalty-free (meaning that SmileBack is not required to pay you for the use on the SmileBack Services of the Content that you post), sublicensable (so that SmileBack is able to use its affiliates, subcontractors and other partners such as Internet content delivery networks and wireless carriers to provide the SmileBack Services), and worldwide (because the Internet and the SmileBack Services are global in reach).
3 You represent and warrant that: (i) you own the Content posted by you on or through the SmileBack Services or otherwise have the right to grant the license set forth in this Section 6, and (ii) the posting of your Content on or through the SmileBack Services does not violate the privacy rights, Terms of Service, publicity rights, copyrights, contract rights or any other rights of any person or entity. In the instance of a Terms of Service violation, you agree to relinquish all rights to any Content you have posted; SmileBack then becomes the sole owner of your Content. You agree to pay for all royalties, fees, and any other monies owing any person or entity by reason of any Content posted by you on or through the SmileBack Services.
4 SmileBack Content is protected by copyright, trademark, patent, trade secret and other laws, and SmileBack owns and retains all rights in the SmileBack Content and the SmileBack Services. SmileBack hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the SmileBack Content (excluding any software code) solely for your personal use in connection with viewing the SmileBack Website and using the SmileBack Services.
5 The SmileBack Services contain Content of Users and other SmileBack licensors. Except as provided within this Agreement, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through the SmileBack Services.
6 SmileBack performs technical functions necessary to offer the SmileBack Services, including but not limited to transcoding and/or reformatting Content to allow its use throughout the SmileBack Services.
8 Content Posted.
SmileBack may reject, refuse to post or delete any Content for any or no reason, including Content that in the sole judgment of SmileBack violates this Agreement or which may be offensive, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity. SmileBack assumes no responsibility for monitoring the SmileBack Services for inappropriate Content or conduct. If at any time SmileBack chooses, in its sole discretion, to monitor the SmileBack Services, SmileBack nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of the User submitting any such Content. You are solely responsible for the Content that you post on or through any of the SmileBack Services, and any material or information that you transmit to other Members and for your interactions with other Users.
9 Content/Activity Prohibited. The following are examples of the kind of Content that is illegal or prohibited to post on or through the SmileBack Services. SmileBack reserves the right to investigate and take appropriate legal action against anyone who, in SmileBack's sole discretion, violates this provision, including without limitation, removing the offending Content from the SmileBack Services and terminating the Membership of such violators. Prohibited Content includes, but is not limited to, Content that, in the sole discretion of SmileBack:
1 is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
2 harasses or advocates harassment of another person;
3 exploits people in a sexual or violent manner;
4 contains nudity, excessive violence, or offensive subject matter or contains a link to an adult website;
5 publicly posts information that poses or creates a privacy or security risk to any person;
6 constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
7 constitutes or promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protect devices, or providing pirated music or links to pirated music files;
8 involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
9 contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
10 furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
11 solicits passwords or personal identifying information for commercial or unlawful purposes from other Users;
12 involves commercial activities and/or sales without prior written consent from SmileBack such as contests, sweepstakes, barter, advertising, or pyramid schemes, or is intended to defraud, swindle or deceive other Users;
13 includes a photograph or video of another person that you have posted without that person's consent; or
14 violates the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person.
The following are examples of the kind of activity that is illegal or prohibited through your use of the SmileBack Services. SmileBack reserves the right to investigate and take appropriate legal action against anyone who, in SmileBack's sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities. Prohibited activity includes, but is not limited to:
1 criminal or tortious activity, including, without limitation, child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
2 advertising to, or solicitation of, any Member to buy or sell any products or services through the unauthorized or impermissible use of the SmileBack Services. You may not transmit any chain letters or junk email to other Members. In order to protect our Members from such advertising or solicitation, SmileBack reserves the right to restrict the number of messages which a Member may send to other Members in any 24-hour period to a number which SmileBack deems appropriate in its sole discretion. If you breach this Agreement and send unsolicited bulk email, instant messages or other unauthorized commercial communications of any kind through the SmileBack Services, you acknowledge that you will have caused substantial harm to SmileBack, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay SmileBack $50 for each such unsolicited email or other unauthorized commercial communication you send through the SmileBack Services;
3 circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person in circumventing or modifying any security technology or software that is part of the SmileBack Services;
4 activity that involves the use of viruses, bots, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware, or otherwise permit the unauthorized use of or access to a computer or a computer network;
5 covering or obscuring any banner advertisements on your personal profile page, or any SmileBack page via HTML/CSS or any other means;
6 any automated use of the system, such as, but not limited to, using scripts to send comments or messages;
7 interfering with, disrupting, or creating an undue burden on the SmileBack Services or the networks or services connected to the SmileBack Services;
8 impersonating or attempting to impersonate another Member, person or entity;
9 using the account, username, or password of another Member at any time or disclosing your password to any third party or permitting any third party to access your account;
10 selling or otherwise transferring your profile;
11 using any information obtained from the SmileBack Services in order to harass, abuse, or harm another person or entity, or attempting to do the same;
12 displaying an unauthorized commercial advertisement on your profile, or accepting payment or anything of value from a third person in exchange for your performing any commercial activity through the unauthorized or impermissible use of the SmileBack Services on behalf of that person, such as placing commercial content on your profile, posting blogs or bulletins with a commercial purpose, or sending private messages with a commercial purpose; or
13 using the SmileBack Services in a manner inconsistent with any and all Applicable Law.
10 Protecting Copyrights and Other Intellectual Property. SmileBack respects the intellectual property of others, and requires that our users do the same. You may not upload, embed, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. It is SmileBack's policy to terminate the Membership of repeat infringers. If you believe your work has been copied and posted on or through the SmileBack Services in a way that constitutes copyright infringement, please send an email to firstname.lastname@example.org with all of the following information: (a) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (b) identification of the claimed infringing material and information reasonably sufficient to permit us to locate the material on the SmileBack Services (providing the URL(s) of the claimed infringing material satisfies this requirement); (c) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (e) a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and (f) your physical or electronic signature.
11 Member Disputes. You are solely responsible for your interactions with other SmileBack Members. SmileBack reserves the right, but has no obligation, to become involved in any way with disputes between you and other Members.
13 Disclaimers. SmileBack is not responsible for and makes no warranties, express or implied, as to the User Content or the accuracy and reliability of the User Content posted on or through the SmileBack Services, whether caused by Users of the SmileBack Services or by any of the equipment or programming associated with or utilized in the SmileBack Services, and such User Content does not necessarily reflect the opinions or policies of SmileBack. Profiles and third party applications created and posted by Members on the SmileBack Website may contain links to other websites and services. SmileBack is not responsible for the content, accuracy or opinions expressed on such websites and services, and such websites and services are not necessarily investigated, monitored or checked for accuracy or completeness by SmileBack. Inclusion of any linked website or service on the SmileBack Services does not imply approval or endorsement of the linked website or service by SmileBack. When you access these third party sites and services, you do so at your own risk. SmileBack takes no responsibility for third party advertisements or third party applications that are posted on or through the SmileBack Services, nor does it take any responsibility for the goods or services provided by its advertisers. SmileBack is not responsible for the conduct, whether online or offline, of any User of the SmileBack Services. SmileBack assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User or Member communication. SmileBack is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or mobile data networks, on any of the SmileBack Services, or any combination thereof, including, without limitation, any injury or damage to Users or to any person's computer or mobile device related to or resulting from participation or downloading materials in connection with the SmileBack Services. Under no circumstances shall SmileBack be responsible for any loss or damage, including, without limitation, personal injury or death, resulting from use of the SmileBack Services, attendance at a SmileBack event, from any User Content posted on or through the SmileBack Services, or from the conduct of any Users of the SmileBack Services, whether online or offline. The SmileBack Services are provided "AS-IS" and as available and SmileBack expressly disclaims any warranty of fitness for a particular purpose or non-infringement. SmileBack cannot guarantee and does not promise any specific results from use of the SmileBack Services.
14 Limitation on Liability. IN NO EVENT SHALL SmileBack BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SmileBack SERVICES, EVEN IF SmileBack HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SmileBack's LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO SmileBack FOR THE SmileBack SERVICES DURING THE TERM OF MEMBERSHIP.
15 U.S. Export Controls. Software available in connection with the SmileBack Services (the "Software") is further subject to United States export controls. No Software may be downloaded from the SmileBack Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
1 Arbitration of Disputes. You and SmileBack agree that any disputes arising out of or related to the SmileBack Services, this Agreement and/or any policies or practices of SmileBack will be subject to FINAL AND BINDING ARBITRATION as set forth in this section, and may only be resolved through an individual arbitration governed by the Federal Arbitration Act, to the maximum extent permitted by applicable law. The only exceptions to this agreement to arbitrate disputes are claims of infringement or misappropriation SmileBack's copyright, patent, trade secret, trademark, service mark, trade dress or other intellectual property or proprietary rights, which SmileBack may elect to have resolved by means other than arbitration. YOU AND SmileBack AGREE THAT WE ARE EACH GIVING UP OUR RIGHT TO GO TO COURT in connection with any dispute, and that our rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY.
2 No Class Actions. YOU AND SmileBack ACKNOWLEDGE THAT NEITHER OF US WILL BRING OR PARTICIPATE IN ANY CLASS ACTION OR OTHER CLASS PROCEEDING IN CONNECTION WITH ANY DISPUTE WITH THE OTHE PARTY. Further, neither you nor SmileBack agrees to class arbitration or any arbitration where a person brings a dispute as a representative of other person(s).
3 Arbitration Procedure. If the parties are unable to resolve a dispute by informal means, the arbitration of disputes will be administered by the American Arbitration Association (AAA), a non-profit organization not affiliated with SmileBack, in accordance with its Commercial Arbitration Rules, and if deemed appropriate by the arbitrator, the Supplementary Procedures for Consumer-Related Disputes. You can find further details about the arbitration procedure by clicking here.
4 Enforcement. Any proceeding to enforce this arbitration agreement may be brought in any court of competent jurisdiction.
5 Limitation of Time Period to Commence a Dispute. Regardless of any statute or law to the contrary, and to the maximum extent permitted by applicable law, any dispute must be filed within one (1) year after the date in which the incident giving rise to the dispute occurred. Failure to file an arbitration claim as described above within the applicable limitations period constitutes a waiver of such claim and serves as complete bar to any claim based on any dispute.
17 Indemnity. You agree to indemnify and hold SmileBack, its subsidiaries, and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including, without limitation, reasonable attorneys' fees, made by any third party due to or arising out of your use of the SmileBack Services in violation of this Agreement and/or arising from a breach of this Agreement and/or any breach of your representations and warranties set forth in this Agreement and/or any Content that you post on or through the SmileBack Services.
18 Other. This Agreement is accepted upon your use of the SmileBack Website or any of the SmileBack Services and is further affirmed by you becoming a Member. This Agreement constitutes the entire agreement between you and SmileBack regarding the use of the SmileBack Services. The failure of SmileBack to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. SmileBack is a trademark of WhoWentOut, Inc. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to its conflict of law provisions.
Please contact us at email@example.com with any questions regarding this Agreement.
I HAVE READ THIS AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE. I UNDERSTAND THAT SMILEBACK DOES NOT CONDUCT CRIMINAL BACKGROUND CHECKS ON ITS MEMBERS.
The SmileBack Application is a general audience application and does not knowingly collect PII from children under 13 years of age.
COLLECTION AND SUBMISSION OF PII AND NON-PII ON SMILEBACK
When SmileBack collects PII from you it is because you are voluntarily submitting Registration PII to us in order to register as a Member of SmileBack. In addition, SmileBack collects other non-PII including aggregate user data. This data is used to manage and improve the SmileBack Services, track usage, and for security purposes.
SmileBack Members may also choose to provide or store non-PII information in their profiles, including but not limited to date of birth, interests, hobbies, lifestyle choices, groups with whom they are affiliated (schools, companies), videos and/or pictures, private messages, bulletins or personal statements (collectively "Profile Information"). The Profile Information in a Member's profile is provided at his or her sole discretion.
NOTICE: SMILEBACK WILL PROVIDE YOU WITH NOTICE ABOUT ITS PII COLLECTION PRACTICES
USE: SmileBack's USE OF PII
SmileBack employees, agents and contractors must have a business reason to obtain access to your PII. SmileBack may share your PII with those who help us manage or provide SmileBack Services' information activities (for example, message board administration, order fulfillment, statistical analyses, data processing), or with outside contractors, agents or sponsors who help us with the administration, judging and prize fulfillment aspects of contests, promotions and sweepstakes.
These outside contractors, agents or sponsors may temporarily store some information on their servers, but they may only use your PII to provide SmileBack with a specific service and not for any other purpose. SmileBack may also provide your PII to a third party in those instances where you have chosen to receive certain information and have been notified that the fulfillment of such a request requires the sharing of your PII. SmileBack also may share your PII with Affiliated Companies if it has a business reason to do so.
There may be instances when SmileBack may access or disclose PII, Profile Information or non-PII without providing you a choice in order to: (i) protect or defend the legal rights or property of SmileBack, our Affiliated Companies or their employees, agents and contractors (including enforcement of our agreements); (ii) protect the safety and security of Users of the SmileBack Services or members of the public including acting in urgent circumstances; (iii) protect against fraud or for risk management purposes; or (iv) comply with the law or legal process. In addition, if SmileBack sells all or part of its business or makes a sale or transfer of all or a material part of its assets or is otherwise involved in a merger or transfer of all or a material part of its business, SmileBack may transfer your PII to the party or parties involved in the transaction as part of that transaction.
ACCESS, REMEDIES AND COMPLIANCE: HOW TO ACCESS, CORRECT OR CHANGE YOUR PREFERENCES REGARDING YOUR PII AND HOW TO CONTACT SMILEBACK ABOUT PRIVACY CONCERNS
Whenever possible, SmileBack Members may review the Registration PII we maintain about them in our records. We will take reasonable steps to correct any PII a Member informs us is incorrect. If you are a Member, you can view and change your Registration PII, Member preferences and Profile Information by logging into your account and accessing features such as "Edit Profile."
If you ask SmileBack to stop using your PII, SmileBack will honor that request while retaining any record of your PII that is necessary to comply with applicable federal, state or local law.
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