Appcircle.io by Smartface Inc.

Terms of Service

1.Purpose of Terms of Service

  • This “TERMS OF SERVICE” is a legally binding agreement between you (individually or on behalf of your company, institution, organization or other entity, hereinafter will be referred as “you” or “your”) and SMARTFACE INC. whose registered address is 530 Lytton Ave, 2nd Fl, Palo Alto, 94301, CA. Being a Party to this Agreement means that you as an individual as well as your company uses this Web Site (appcircle.io, “the Site”) in any way, including using, transmitting, downloading, or uploading any of the services or functionality (the “Service”) made available or enabled via the Site by Smartface or merely browsing the Site, you agree to these Terms of Service.
  • You may not accept these Terms of Service or use the Service if you are not of legal age to be legally bound by a contract under any applicable law or you are prohibited by any applicable law to receive the Service.
  • Except to the extent that SMARTFACE is expressly precluded by applicable law, SMARTFACE further reserves the right to make amendments to this Agreement, including but not limited to as needed to reflect changes in business practices or to reflect changes in or required by law or otherwise, by providing You with reasonable notice of the changes (e.g., which notice may be sent in writing or made available electronically or which may be made by posting notice of such update at www.appcircle.io with a link to the updated version). You will be responsible for reviewing and becoming familiar with any and all such changes. If You continue to use this Website or any services after notice of any changes has been provided or posted, You shall be deemed to have accepted any and all such changes.

 

2. Definitions

Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.

  • “Content”means, without limitation, any and all information, data, software code, software binaries, results, ideas, plans, sketches, texts, files, links, images, photos, video, sound, inventions (whether or not patentable), notes, works of authorship, articles, feedback, or other materials.
  • “Customer Content”means any Content, including Project Content, provided, imported or uploaded to, or otherwise used by you or on your behalf with the Services.
  • “Documentation”means all specifications, user manuals, and other technical materials relating to the Services.
  • “Intellectual Property Rights”means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
  • “Named Users”means Users that have been specifically identified by you and for whom you will pay the applicable fee.
  • “Open Source Project” means a Project that is made available under the terms of a license meeting the definition of an open source license as promulgated by the Open Source Initiative.
  • “Order Form” means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form and specifying, among other things, the number of licenses and other service contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties each order form to be incorporated into and become a part of these Terms.
  • “Plugin and Module Store” means the channel, whether it is a separate website or a part of the Service, where proprietary Products and Content are provided by third parties or by SMARTFACE for distribution and sale.
  • “Project”means a software project or a distribution project created by a User on the Service.
  • “Project Administrator(s)”means, with respect to a particular Project, those Users designated by you who are authorized to assign access rights to Users and otherwise administer the Project.
  • “Project Content” means, with respect to a particular Project, any Content provided, imported or uploaded to the Service in connection with such Project.
  • “User” means a user of the Service.

 

3. Projects

3.1. When you create a Project using the Service, you must designate the license pursuant to which licensees obtain rights to the Project Content (“Project License”). If the Project License meets the definition of an open source license as promulgated by the Open Source Initiative, you may designate the Project as an Open Source Project subject to Section 4.3 (Open Source Projects).

3.2. When you create a Project using the Service, you will be designated as the initial Project Administrator for such Project with the right to designate additional Project Administrators. Through the Site, each Project Administrator may assign to, or revoke from other Users certain access rights with respect to a Project for which such User is a Project Administrator.

3.3. If you designate your Project as an Open Source Project, (a) you agree that, despite any settings a Project Administrator may have made with respect to access rights, all Users will have the right to view the Project and/or copy the Project to create a derivative project; (b) you acknowledge and agree that SMARTFACE may list the Project on the Site; (c) you acknowledge and agree that the Project may be indexed by search engines; and (d) you hereby grant each User who accesses, downloads, or otherwise obtains any Project Content using the Services a license to such Project Content in accordance with the applicable Project License.

 

4. License

4.1. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service. SMARTFACE reserves all rights not expressly granted herein in the Service and the Content. SMARTFACE may terminate this license at any time for any reason or no reason.

All right, title, and interest in and to the Service (excluding Content provided by you) are and will remain the exclusive property of SMARTFACE and its licensors. The Service is protected by copyright, trademark, and other Federal and state laws of the United States and all other applicable jurisdictions. Nothing in this Agreement gives you a right to use the SMARTFACE name or any of its trademarks, logos, domain names, and other distinctive brand features. Any feedback, comments, or suggestions you may provide regarding SMARTFACE or the Service are entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.

You agree that you will not: (a) permit any party to access and/or use the Service, other than the Users authorized under these Terms; (b) rent, lease, loan, or sell access to the Service to any third party; (c) interfere with, disrupt, alter, translate, or modify the Service or any part thereof, or create an undue burden on the Service or the networks or services connected to the Service (including, without limitation, any external websites that contain third party content and that are linked to via the Service); (d) except as permitted by applicable law, reverse engineer or access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service; (e) with respect to a particular Project, exceed or attempt to exceed the scope of the access rights granted to you for such Project; (f) without SMARTFACE’s express written permission, introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Service; (g) perform or publish any performance or benchmark tests or analyses relating to the Service or the use thereof; or (h) cover or obscure any page or part of the Service via HTML/CSS, scripting, or any other means; (i) use automated means to create and manage Users and use the Service; (j) share a single user account with multiple parties. Except as expressly set forth in these Terms, no express or implied license or right of any kind is granted to you regarding the Service or any part of the Service.

4.2 License to SMARTFACE Content. Certain Content is provided through the Service by SMARTFACE. Subject to the terms and conditions of these Terms, SMARTFACE hereby grants you a non-exclusive, non-transferable license to view, download and print Content provided by SMARTFACE subject to the following conditions: (a) you may access and use the Content solely for personal, informational, non-commercial and internal purposes, in accordance with these Terms; (b) you may not modify or alter the SMARTFACE Content; (c) you may not distribute or sell, rent, lease, license or otherwise make the SMARTFACE Content available to others; (d) you may not remove any copyright or other proprietary notices contained in the SMARTFACE Content; and (d) you may not copy or distribute any photos, graphics, audio or video in the SMARTFACE Content apart from their accompanying text. SMARTFACE reserves the right to revoke the authorization to view, download and print the SMARTFACE Content at any time. The rights specified above are not applicable to the design, layout or look and feel of the Site. Such elements of the Site are protected by Intellectual Property Rights and may not be copied or imitated in whole or in part. No mark, graphic, sound or image from the Site may be copied or retransmitted unless expressly permitted by SMARTFACE.

4.3 License to Other User Content. Certain areas of the Site, such as the general wiki and the forums, may allow Users to share Content with other Users. Subject to the terms and conditions of these Terms, SMARTFACE hereby grants you a non-exclusive, non-transferable license to view, download and print Content (other than Project Content) provided by other Users (“Other User Content”), subject to the following conditions: (a) you may access and use the Other User Content solely for personal, informational, non-commercial and internal purposes, in accordance with these Terms; (b) you may not modify or alter the Other User Content; (c) you may not distribute or sell, rent, lease, license or otherwise make the Other User Content available to others; (d) you may not remove any copyright or other proprietary notices contained in the Other User Content; and (d) you may not copy or distribute any photos, graphics, audio or video in the Other User Content apart from their accompanying text. SMARTFACE reserves the right to revoke the authorization to view, download and print the Other User Content at any time.

4.4 License to Project Content. Your rights with respect to any Project Content to which you have access is governed solely by the terms and conditions of the Project License specified for such Project Content; provided that if no Project License is specified, such Project Content will be subject to Section 4.3 as such Section applies to Other User Content.

4.5 Usernames and Passwords. When you register, SMARTFACE will ask you to provide a unique username and password to enable you to access the Service pursuant to these Terms. SMARTFACE reserves the right to require you to change your username and password in SMARTFACE’s sole discretion from time to time. You are responsible for maintaining the confidentiality of your username and password, and are solely responsible for all activities that occur under your username. You agree (a) not to allow a third party to use your account, username or password at any time; and (b) to notify SMARTFACE promptly of any actual or suspected unauthorized use of your account, username or password, or any other breach or suspected breach of these Terms. SMARTFACE reserves the right to terminate any username and password, which SMARTFACE reasonably determines may have been used by an unauthorized third party.

 

5. Intellectual Property

The Service and all Intellectual Property Rights in the Service, the SMARTFACE Content and any of SMARTFACE’s proprietary technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, technologies, designs and other tangible or intangible technical material or information made available to you by SMARTFACE in providing the Service (the “SMARTFACE Technology”) are the exclusive property of SMARTFACE or its suppliers. You hereby assign to SMARTFACE any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you related to the Service, the SMARTFACE Content or the SMARTFACE Technology. Except as expressly set forth herein, no express or implied license or right of any kind is granted to you regarding the Service, the SMARTFACE Content or the SMARTFACE Technology, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the SMARTFACE Technology. All rights not expressly granted to you are reserved to SMARTFACE.

 

6. Copyright Policy

SMARTFACE respects the intellectual property rights of others and expects users of the Service to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your Content has been copied in a way that constitutes copyright infringement, please provide our copyright agent with the following information in accordance with the Digital Millennium Copyright Act: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

Please send an e-mail to [email protected] for notice of alleged copyright infringement appearing on the Service.

We reserve the right to remove Content alleged to be infringing without prior notice and at our sole discretion. SMARTFACE will terminate your account if you are determined to be a repeat infringer.

 

6. Payment

6.1. SMARTFACE charges and collects in advance for use of the Service. It uses a billing solution called PAYMENTWALL. SMARTFACE will automatically renew and bill your credit card or online payment account each month. The renewal charge will be equal to the License Fee in effect during the prior month, unless the SMARTFACE has given you at least thirty (30) days prior written notice or public announcement on the websites related with the Service of a fee increase, which shall be effective upon renewal and thereafter. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less. SMARTFACE shall be entitled to withhold performance and discontinue Service until all amounts due are paid in full. SMARTFACE’s fees are exclusive of all taxes, levies or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on SMARTFACE’s income. You agree to provide SMARTFACE with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address and name and telephone number of an authorized billing contact and Project Administrator. You agree to update this information within thirty (30) days of any change to it. If the contact information you have provided is false or fraudulent, SMARTFACE may terminate your access to the Service in addition to any other legal remedies. All sales are final with no refunds and only upcoming terms can be terminated before their payment is received.

6.2 Named Users. You are responsible for paying for the number of Named Users designated in your account, whether or not the Named Users use the Services. You may add Named Users by designating the number of Named Users you desire in your account; however you may not delete any of Named Users you have added before. Added Named Users will be subject to the following: (a) the fee applicable to Named Users after such addition will be the then-current fee set forth on the Site applicable to the total number of Named Users designated in your account and (b) any increase to the fees as a result of the addition of a Named User in the middle of a billing month will be charged in full for that billing month. You may transfer a Named User license to another User, provided that you may not exceed the number of Named Users for which you have paid the applicable License Fees. You acknowledge that if you have been designated as a Named User by another User (“Paying User”), notwithstanding anything to the contrary in this Agreement, SMARTFACE shall be entitled to withhold performance and discontinue Service to you until all amounts due on your account (including, but not limited to, your License Fee) are paid in full.

 

7. Customer Content and Conduct

7.1 License; Warranty. You grant SMARTFACE a non-exclusive, worldwide, royalty-free and fully paid license (a) to use the Customer Content in conjunction with the Service; and (b) to use your trademarks, service marks, and logos as required to provide the Service. All rights in and to the Customer Content not expressly granted to SMARTFACE in these Terms are reserved by you.

7.2 Content and Conduct. You represent and warrant that any Customer Content shall not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (d) contain any viruses, worms or other malicious computer programming codes able to damage the Service, any Content, or other data of the Service; or (e) otherwise violate the rights of a third party. In addition, you agree not to use, or encourage or permit others to use, the Site or Service to (i) stalk and/or harass another; (ii) harm minors in any way; (iii) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; (iv) forge headers or otherwise manipulate identifiers to disguise the origin of any Content posted on or transmitted through the Service; (v) use the Site, Service or Content such that it will mislead a third party into believing that he or she is interacting directly with SMARTFACE or the Service; (vi) engage in any chain letters contests, junk e-mail, pyramid schemes, spamming, surveys or other duplicative or unsolicited messages (commercial or otherwise); (vii) use any SMARTFACE domain name as a pseudonymous return e-mail address; (viii) access or use the Site or Service in any manner that could damage, disable, overburden or impair any SMARTFACE server or the networks connected to any SMARTFACE server; or (ix) market any goods or services for any business purposes (including advertising and making offers to buy or sell goods or services), unless specifically allowed to do so by SMARTFACE. You will defend at your expense any suit brought against SMARTFACE and will pay any settlement you make or approve or any damages finally awarded in such suit insofar as such suit is based on a claim by any third party based upon, resulting from or related to any improper or unauthorized use of the Service by you or any Customer Content. You are fully responsible for all activity conducted with your user account.

7.3 Storage; Security and Backups. SMARTFACE reserves the right to establish capacity limits on your storage of Customer Content on the Service. SMARTFACE shall provide logical and physical security to ensure the logical and physical security of its equipment and Customer Content. The logical and physical security provided by SMARTFACE will include, but not be limited to (a) a defined security administration practice and process including account and password administration; and (b) ensuring that only authorized SMARTFACE employees and contractors who have a need for physical access to provide the Service will have such access to the equipment and Customer Content. During the Term, SMARTFACE shall use commercially reasonable efforts to protect Customer Content behind a secure firewall system, to conduct daily data backups, and to store weekly full-system backups in a separate, fire-resistant facility.

7.4 Content Loss. You represent and warrant that you shall keep and maintain your own copy of all Project Content that is provided to the Service and SMARTFACE. Except as set forth below, SMARTFACE is not obligated to back up any Project Content that is posted on the Service. SMARTFACE therefore recommends that you create backup copies of any Project Content posted on the Service at your sole cost and expense. You agree that any use of the Service contrary to or in violation of your representations and warranties in this section constitutes improper and unauthorized use of the Service. You agree that SMARTFACE may (but has no obligation to), in SMARTFACE’s sole discretion, remove or modify any Project Content which it deems to violate your representations and warranties in this section. In the event of a loss of Project Content caused by SMARTFACE, SMARTFACE will use commercially reasonable efforts to recover the Project Content within the shortest time period possible. If SMARTFACE performs recovery services for a loss of Customer Content not caused by SMARTFACE, you agree to pay SMARTFACE’s then-current time and materials rate to attempt to recover the Project Content. The foregoing constitutes your sole and exclusive remedy for any loss of Customer Content.

7.5 Access to Project Content on Termination. In the event your access to the Service is terminated (other than by reason of your breach), SMARTFACE will make available to you a file of the Project Content if requested in writing by you within reasonable time determined by SMARTFACE after such termination. You agree and acknowledge that SMARTFACE has no obligation to retain the Project Content, and may delete such Project Content, at any time following termination. SMARTFACE reserves the right to withhold, remove and/or discard Project Content, without notice, for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Project Content shall immediately cease, and SMARTFACE will have no obligation to maintain or provide any Project Content.

7.6 Fair Use. Smartface reserves the right to cancel the Service or ask for additional charges if excessive use of any resource beyond the Service plan limits is detected.

 

8. Third Party Links. The Site may contain links to other web sites operated by third parties. Such third party web sites are not under the control of SMARTFACE. SMARTFACE is not responsible for the content of any third party web site or any link contained in a third party web site. SMARTFACE provides these links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to third party web sites.

 

9. SMARTFACE Plugin and Module Store

You may use the SMARTFACE Plugin and Module Store to browse, download and purchase subscriptions, products, tools and services (collectively “Products”). Some of these Products may be offered by SMARTFACE, while others may be made available by third parties. You agree that SMARTFACE is not responsible for any Product that originates from a source other than SMARTFACE. You agree that you are solely responsible for, and that SMARTFACE has no responsibility to you or to any third party for, your use of the SMARTFACE Plugin and Module Store and/or any third-party Products, any breach of your obligations under this Terms of Service

and for the consequences, including without limitation, loss or damage of any kind which SMARTFACE may suffer as a result of such use or breach.

You agree that you are solely responsible for all fees associated with purchases you make through the SMARTFACE Plugin and Module Store. SMARTFACE may make available to you various payment methods to facilitate the purchase of Products from the SMARTFACE Plugin and Module Store. You agree to abide by any relevant terms that govern the use of the particular payment processing method. SMARTFACE reserves the right to add or remove payment methods at its sole discretion.

In order to access certain services in the SMARTFACE Plugin and Module Store, You may be required to provide information, such as your name, address, and billing details. You agree that any such information you provide to SMARTFACE will always be accurate, correct and up to date.

Some components of Products may also be governed by applicable open source software licenses. In the event of a conflict between this Terms of Service and any such licenses, the open source software licenses will prevail with respect to those components. NONE OF THE PRODUCTS ARE INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, LIFE SUPPORT SYSTEMS, EMERGENCY COMMUNICATIONS, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL SYSTEMS, OR ANY OTHER SUCH ACTIVITIES IN WHICH CASE THE FAILURE OF THE PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.

SMARTFACE may permanently or temporarily stop providing all or a portion of the SMARTFACE Plugin and Module Store, or any Products, to you, or to users generally, at SMARTFACE’s sole discretion, without prior notice to you. If SMARTFACE disables access to your account, you may be prevented from accessing the SMARTFACE Plugin and Module Store, your account information and Products that are stored with your account.

You agree to use the SMARTFACE Plugin and Module Store only for purposes that are permitted by the Terms of Service and any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions. You agree to comply with all applicable export controls. By using the SMARTFACE Plugin and Module Store, You represent and warrant that you are not prohibited from receiving exports or services under US or other applicable export laws. You agree to comply with all local laws and regulations regarding the download, installation or use of the Products.

You agree that you will not reproduce, duplicate, copy, sell or distribute the SMARTFACE Plugin and Module Store. You agree not to attempt to access or access the SMARTFACE Plugin and Module Store by any means other than through the interface that is provided by SMARTFACE, Inc. You specifically agree not to access, or attempt to access, the SMARTFACE Plugin and Module Store through any automated means. You agree that you will not engage in any activity that interferes with or disrupts the SMARTFACE Plugin and Module Store or the servers and networks which are connected to the SMARTFACE Plugin and Module Store. You agree that you will not use any of the Products in a way that interferes or disrupts any servers, networks, or websites operated by SMARTFACE or any third party.

You agree that SMARTFACE or third parties own all right, title and interest in and to the SMARTFACE Plugin and Module Store and the Products available through the SMARTFACE Plugin and Module Store, including without limitation all applicable Intellectual Property Rights in the Products. “Intellectual Property Rights” means any and all rights existing under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights worldwide.

 

10. Limited Warranty and Disclaimer

10.1 Limited Warranty. SMARTFACE warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will materially conform to SMARTFACE’s then current Documentation for the Service under normal use and circumstances. If you notify SMARTFACE of a breach of warranty, SMARTFACE will correct or modify the Service so that it conforms to SMARTFACE’s then current Documentation for the Service. The foregoing constitutes your sole and exclusive remedy for any breach of warranty.

10.2 Disclaimer. The limited warranty set forth in these Terms is made for your benefit only. Except as expressly provided in this section and to the maximum extent permitted by applicable law, the Service and any other services provided by SMARTFACE are provided “as is,” and SMARTFACE makes no (and hereby disclaims all) warranties, representations, or conditions, whether written, oral, express, implied or statutory, including, without limitation, any implied warranties of merchantability, title, noninfringement, or fitness for a particular purpose, with respect to the use, misuse, or inability to use the Service (in whole or in part) or any other products or services provided to you by SMARTFACE. SMARTFACE does not warrant that all errors can be corrected, or that operation of the Service shall be uninterrupted or error-free.

10.3 Internet Delays. The Service may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. SMARTFACE is not responsible for any delays, delivery failures or other damages resulting from such problems.

 

11. Limitation of Liability

11.1 Types of Damages. To the maximum extent permitted under applicable law, in no event shall SMARTFACE, or its suppliers, be liable to you for any special, indirect, incidental or consequential damages or any lost profits, including any such damages or costs due to loss of data, use or goodwill, personal or property damage resulting from or in connection with SMARTFACE’s performance hereunder or the use, misuse, or inability to use the Service or other products or services hereunder, regardless of the cause of action or the theory of liability, whether in tort, contract, or otherwise, even if SMARTFACE has been notified of the likelihood of such damages. In no event shall SMARTFACE be liable for procurement costs of substitute products or services.

11.2 Amount of Damages. To the maximum extent permitted under applicable law, the maximum liability of SMARTFACE arising out of or in any way connected to these Terms shall not exceed the fees paid by you to SMARTFACE during the Twelve (12) months immediately preceding the claim. The existence of one or more claims under these Terms will not increase SMARTFACE’s liability. In no event shall SMARTFACE’s suppliers have any liability arising out of or in any way connected to these Terms.

11.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Terms entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

11.4 Additional Rights. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

 

12. Indemnification

12.1 By SMARTFACE. SMARTFACE will defend at its expense any suit brought against you, and will pay any settlement SMARTFACE makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Service misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any United States copyright. If any portion of the Service becomes, or in SMARTFACE’s opinion is likely to become, the subject of a claim of infringement, SMARTFACE may, at SMARTFACE’s option: (a) procure for you the right to continue using the Service; (b) replace the Service with non-infringing services which do not materially impair the functionality of the Service; (c) modify the Service so that it becomes non-infringing; or (d) terminate the Service and refund any fees actually paid by you to SMARTFACE for the remainder of the License Term then in effect. Notwithstanding the foregoing, SMARTFACE shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Service not in accordance with these Terms or the Documentation; (x) SMARTFACE’s conformance to your specifications; (y) any use of the Service in combination with other products, equipment, software or Content not supplied by SMARTFACE; or (z) any modification of the Service by any person other than SMARTFACE or its authorized agents. This subsection states your sole and exclusive remedy for infringement claims and actions.

12.2 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

 

13. Termination

13.1 Term. These Terms will continue to apply until terminated by either you or SMARTFACE as set forth below (the “Term”).

13.2 Termination by You. If you want to terminate your agreement with SMARTFACE, you may do so by (a) notifying SMARTFACE at any time; and (b) closing your account for the Service, where SMARTFACE has made this option available to you. Your notice should be sent, in writing, to SMARTFACE’s address set forth below. Any termination is final and immediate. If the Service is terminated before the end of the Service term, no refunds or no similar compensation will be provided.

13.3 Termination by SMARTFACE. SMARTFACE may at any time terminate these Terms if (a) you or any of your Named Users have breached any provision of these Terms (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with these Terms); (b) SMARTFACE is required to do so by law (for example, where the provision of the Site or Service to you is, or becomes, unlawful); (c) the provision of the Service to you by SMARTFACE is, in SMARTFACE’s opinion, no longer commercially viable; or (d) SMARTFACE has elected to discontinue the Site or the Service (or any part thereof).

13.4 Effect of Termination. Termination of your account includes: (a) removal of access to all offerings within the Service; (b) deletion of your password and all related information; and (c) barring of further use of the Service. Upon expiration or termination, you shall promptly discontinue use of the Site and the Service. However, Sections 5.6 (IP Ownership), 6 (Payment), 7.1 (License; Warranty), 7.4 (Content Loss), 8 (Third Party Links), 11 (Limited Warranty and Disclaimer), 12 (Limitation of Liability), 13 (Indemnification), 14 (Termination) and 15 (Miscellaneous) of these Terms will survive any termination of the Terms.

 

14. User Disputes. Your interactions with other Users found on or through the Service are solely between you and such other Users.If there is a dispute between you and any third party (including, without limitation, any User), SMARTFACE is under no obligation to become involved; however, we reserve the right, but have no obligation, to monitor disputes between you and other Users.

 

15. Governing Law. To the fullest extent permitted by law, and except as explicitly provided otherwise, these Terms and any disputes arising out of or relating to it will be governed by the laws of the state of California.

 

16. Forum and Jurisdiction. You and SMARTFACE agree any claims, demands, or disputes arising out of this Terms of Service shall be exclusively resolved by an appropriate federal or state court located in San Francisco, California.

 

17. Severability. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, you agree that Section on Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in Section on Limited Warranty and Disclaimer.

 

18. Waiver. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

 

19. Remedies. The parties acknowledge that any actual or threatened breach of Section 5 (License Grant and Restrictions) will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce these Terms, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

 

20. No Assignment. You will not assign, subcontract, delegate, or otherwise transfer these Terms, or its rights and obligations herein, without obtaining the prior written consent of SMARTFACE, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that you may assign these Terms in connection with a merger, acquisition, reorganization or sale of all or substantially all of you assets, or other operation of law, without any consent of SMARTFACE. These Terms shall be binding upon the parties and their respective successors and permitted assigns.

 

21. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

 

22. Independent Contractors. Your relationship to SMARTFACE is that of an independent contractor, and neither party is an agent or partner of the other. You will not have, and will not represent to any third party that you have, any authority to act on behalf of SMARTFACE.

 

22. Notices. You are responsible for updating your data to provide SMARTFACE with your most current e-mail address. In the event that the last e-mail address you have provided to SMARTFACE is not valid, or for any reason is not capable of delivering to you any notices required by these Terms, SMARTFACE’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described on the notice. Any notice provided to SMARTFACE pursuant to these Terms should be sent to [email protected]

 

23. Entire Agreement. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersede and merge all prior discussions between the parties with respect to such subject matters. No modification of or amendment to these Terms, or any waiver of any rights under these Terms, will be effective unless in writing.