1. General
Smile Inc. ("Smile", "we", "us" and "our") offers various products and services to help merchants manage loyalty reward programs for their customers including online through the Smile.io platform (the "Platform"), to enable Merchants to offer customers branded loyalty passes for Apple Wallet and Google Wallet that may display loyalty information and facilitate customer identification at point of sale ("Wallet Passes") and the Smile.io website (the "Website").
a. Who is Bound by this Agreement
This Agreement applies to all users of our Services, including "Merchants" (organizations or individuals that use our Services to manage loyalty reward programs for their customers under a Selected Subscription Plan) and "Customers" (individuals that use our Services to understand and manage their loyalty points with a Merchant). References to "Users" means individual end users of the Services, including every employee, representative, consultant, contractor or agent of a Merchant, every Customer and every other end user.
"You" and "your" refers to you, if acting in your individual capacity, or the legal entity on whose behalf you are entering into this Agreement if you are acting on behalf of another legal person. If you are an individual entering into this Agreement in your personal capacity, including as a Customer or a Merchant that is a sole proprietor, you are also a User. If you are a User acting on behalf of another legal person, such as a corporation, you represent that you have the power to bind that legal person. You will ensure compliance with this Agreement by each employee, representative, consultant, contractor or agent who uses the Services on your behalf. If you are a Merchant, that includes any User who creates an account associated with you ("Account").
While you may access the Services through another platform, such as a platform with which the Platform is integrated, this Agreement nonetheless applies to your use of our Services.
b. Acceptance
These terms of use for the Services, together with any Selected Subscription Plan, as applicable, and any other Smile documents or additional terms expressly incorporated by reference (collectively, this "Agreement") is a legal agreement between you and Smile and governs your access to and use of the Services.
By accessing or using any Services offered by Smile, you accept and agree to be bound by and comply with this Agreement. If you do not agree to this Agreement, you are not permitted to access or use the Services.
c. Updates and Changes to Agreement
We reserve the right in our sole discretion to amend this Agreement from time to time by publishing an amended version of this Agreement on the Website. All such amendments are effective immediately when published on the Website and apply to your continued access to and use of the Services. Your continued access to and use of the Services will be your acceptance of any such amendments. If you accessed our Services under an agreement that was entered into prior to June 1, 2021, you agree such agreement is hereby terminated and that this Agreement governs your use of the Services occurring on and after June 1, 2021, notwithstanding anything in such other agreement.
2. The Services
a. Subscription Services
Excluding Services which are available for free, you purchase the Services as a subscription through a Selected Subscription Plan. Subject to your compliance with this Agreement and your payment of all applicable fees, Smile authorizes you to access and use the Services during the subscription term ("Subscription Term") set out in your Selected Subscription Plan and any Services we expressly make available for free.
b. Not Professional Advice
We provide online tools and materials through the Services to assist Merchants with the creation and management of Merchant's loyalty rewards program. However, these online tools, materials and any other information provided are for informational purposes only and are not guaranteed to be correct, complete or up-to-date and are not intended to provide legal, accounting, tax, or other professional advice. All decisions about the design, strategy and use of any program will be yours alone. There are laws that may apply to loyalty rewards programs in your jurisdiction. It is your responsibility to understand and comply with those laws.
c. Account Access
In order to use the Platform, each User must register and create an Account with Smile and provide certain information, which may include a name, email address, login username and password (collectively, "ID"). Customers may install and use Wallet Passes without creating a separate Account with Smile, unless an Account is required for the applicable Service. You are responsible for maintaining the confidentiality of the IDs and will not use the IDs of any third party, disclose your IDs to any third party or permit Users to share IDs. You are responsible for all activities, charges and liabilities made on or through your Accounts, whether authorized or unauthorized by you. If you suspect any unauthorized use with any Account or any use of an ID by anyone other than the applicable User, you must notify us immediately. You will ensure each of your Users provides correct and complete Account information at all times and you will inform us of any changes to the information your Users have provided.
d. Usage Limits
The Services may be subject to usage limits and restrictions, which may be specified in a Selected Subscription Plan or published on the Services, including the locations at or through which you can access or use the Services, the number of allowable Users or number of recipients or customers, and usage volumes (collectively, "Usage Limits"). It is your responsibility to ensure that you do not exceed those Usage Limits. We may add, remove or change Usage Limits by providing notice to you.
e. Equipment
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.
f. Updates and Changes to the Services
We reserve the right in our sole discretion to modify any part of the Services at any time for any reason, or no reason, including by changing, withdrawing or terminating, limiting or expanding a Service or any features or functionalities on the Services, without any notice or liability to you.
3. Fees
a. Service Fees
You will pay all fees set out in your Selected Subscription Plan ("Service Fees"). All Service Fees are non-cancellable and non-refundable and are based on the Subscription Plan purchased and, unless otherwise noted, not actual usage. You are not entitled to any refund in the event of unused Services, including where we terminate or modify the Services for any reason.
b. Taxes
All Service Fees, expenses and other amounts payable to Smile under this Agreement are exclusive of any sales, use, value added, excise, or other applicable taxes, tariffs or duties ("Taxes"), payment of which will be your sole responsibility, even if such amounts are not listed on a Selected Subscription Plan. You will promptly reimburse Smile for any Taxes that Smile pays on your behalf, unless you provide satisfactory documentation that such Taxes are not applicable to you.
c. Overage Fees
We have the right, but not the obligation, to monitor or remotely audit your use of the Services, and extra charges will apply if you exceed any Usage Limits at our then-current usage fees.
d. Payment Terms
Unless otherwise set out in a Selected Subscription Plan, or another agreement, Service Fees are payable in advance of the first day of the Subscription Term. You will pay all Service Fees, expenses and other amounts payable to Smile under this Agreement in the currency as set out in the Selected Subscription Plan, or another agreement, without set-off or deduction. While we may offer third party payment service options, we are not liable or responsible for such third party payment services or their providers in any way.
4. Content and License
a. Content
The Services contain information and data (including text, images, photos, videos, audio and documents) owned or licensed by Smile, its suppliers, or licensors ("Smile Content"). The Services and Smile Content may be protected by copyright, trademark, patent, trade secret and other laws, and, as between you and Smile, Smile owns and retains all title, interest and right, including all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world in and to the Services and Smile Content.
b. Ownership and License
The Services in your Selected Subscription Plan are for the Subscription Term only, and are not sold to you. You are authorized to use the software code provided by us to you for use on your website for the purpose of using the Services only. 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 Smile Content.
You must not modify, build upon or block any portion or functionality of the Services. No Services, nor any part of any Services, may be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without our express written consent.
c. Smile Trademarks
As part of your Selected Subscription Plan, you may be required or permitted to display trademarks owned or licensed by us ("Smile Marks"). You are authorized to display the Smile Marks for the sole purpose of indicating that you use Smile's services and must do so in accordance with any guidelines made available by us from time to time. You will ensure that all goods or services offered in association with the Smile Marks: (i) comply with the requirements of this Agreement; and (ii) include a loyalty program operated by Smile. The goodwill from such use will automatically accrue to Smile. Smile may, on reasonable notice to you, inspect the goods and services offered by you for compliance with this Agreement.
d. Restrictions
You will not do any of the following or permit anyone else to do the following, and will prevent any of your Users from doing the following: (i) license, sub-license, sell, transfer, distribute or share the Services or Smile Content or make any of them available for access by third parties; (ii) create derivative works based on or otherwise modify the Services or Smile Content; (iii) disassemble, reverse engineer or decompile the Services 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 Services or Smile Content in order to develop a competing product or service; (v) use the Services or Smile Content to provide a service for others; (vi) use the Platform to operate more or different type of applications than permitted under the applicable Selected Subscription Plan; (vii) remove or modify a copyright or other proprietary rights notice on or in the Services or documentation; (viii) use a computer or computer network to cause physical injury to the property of another; (ix) violate any applicable federal, provincial, local or international 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 ("Applicable Law"); (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; (xiii) alter, disable, or erase any computer data, computer programs or computer software without authorization; (ix) interfere with, disrupt or undermine the security or the operation of the Services, Platform or Website; or (x) interfere with, disrupt or undermine anyone's use or enjoyment of the Services, Platform or Website.
e. Feedback
If you, your Users or your customers send information to us, for example feedback, comments or suggestions, you grant us a worldwide, perpetual, irrevocable, royalty-free, fully paid-up, non-exclusive, sublicensable and transferable license to use, host, run, reproduce, process, adapt, translate, modify, publish, transmit, distribute and display this information and incorporate this information into our products and Services. You also agree to waive all moral rights in and to that information and obtain waivers or moral rights from your Users and customers.
5. User Content and Merchant Data
a. User Content
You may create, record, submit, publish and use ("submit") text, images, photos, videos, audio and documents ("User Content") through the Services. You are exclusively responsible for all User Content and the consequences of submitting User Content through the Services. We do not verify the accuracy, quality, content or legality of User Content. We may, but are under no obligation to, review, analyze, filter, edit, block or remove any User Content. We are not responsible for preventing or identifying infringement of intellectual property rights or non-compliance with Applicable Laws. Smile 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 User Content.
b. Responsibility to Obtain Consents
You are responsible for obtaining all necessary consents, licenses and waivers required to use the Services, including submitting User Content through the Services. These may include consents, licenses and waivers from copyright, trademark and other intellectual property owners, and any other individuals involved in creating User Content.
If you are a Merchant, "Merchant Data" means electronic data pertaining to you, your Users and your customers that is uploaded or provided to the Services by you, your Users or your customers, or that Smile collects or generates on your behalf in providing the Services, including personal information of your Users and customers for which you are the controller or accountable organization under privacy and data protection laws. Merchant Data may include loyalty information, Wallet Pass identifiers and status information, device library identifiers, device push tokens, pass serial numbers, authentication tokens and point-of-sale scan events. You are solely responsible for obtaining all necessary rights, releases and consents (including consents from individuals under privacy and data protection laws) from your customers and other third parties to allow your Merchant Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant Smile the rights set out in this Agreement and governed by our Data Processing Addendum with you ("DPA"), incorporated herein by reference. We rely on you to obtain all consents from, and provide all disclosures to, your customers as required under Applicable Law. By using the Services, you represent and warrant to Smile that you have obtained all necessary rights, releases and consents from your customers, Users and other third parties to allow your Merchant Data to be collected, used and disclosed in the manner contemplated by this Agreement and for the operation of the Services and to grant us the rights set out in this Agreement.
c. Ownership and License
As between you and Smile, you retain all right, title and interest in and to the User Content you submit through the Services. By submitting User Content through the Services, you grant us a worldwide, perpetual, irrevocable, royalty-free, fully paid-up, non-exclusive, sublicensable and transferable license to use, host, run, reproduce, process, adapt, translate, modify, publish, transmit, distribute and display User Content in connection with the Services. Without limiting the foregoing, this license includes permitting us to: (i) deliver User Content in accordance with the preferences set by the Merchant using the Services; (ii) secure, encode, reproduce, host, cache, route, reformat, analyze and create algorithms and reports based on access to and use of User Content; (iii) use, enhance, personalize, exhibit, broadcast, publish, publicly display, publicly perform, distribute, create derivative works of, promote, copy, store, and/or reproduce (in any form) User Content on or through the Services; (iv) use User Content to test Smile's internal technologies and processes; and (v) use User Content, such as Merchant names, trademarks, logos and other branding, to create, issue, update and provide Wallet Passes to Customers through Apple Wallet and Google Wallet.
You also grant us, and allow us to grant each customer or other user of the Services, a non-exclusive license to view User Content through the Services. We reserve the right to retain (but not display, distribute or publish) server copies of User Content that have been removed or deleted from the Services.
d. 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 User Content you submit, including all content and branding used in Wallet Passes; (ii) the uploading of your User Content on the Service and the licenses granted to Smile 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 Smile to any person for the use or distribution of User Content.
e. Prohibited Content
Some content is prohibited when accessing or using the Services. You agree that you will not upload or use in connection with the Services any prohibited content including content that:(i) contains graphic or gratuitous violence; (ii) conveys a message of hate against any individual or group; (iii) encourages or glorifies illegal drug use; (iv) is predatory in nature, or is submitted for the purpose of harassment or bullying; (v) is highly repetitive and/or unwanted including "Spam" messages; (vi) promotes or incites racism, bigotry, hatred or physical harm of any kind against any group or individual; (vii) 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; (viii) furthers or promotes criminal activity or provides instructional information about illegal activities; or (ix) 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 your Accounts or access to the Services and/or reporting such content or activities to law enforcement authorities.
f. Content Preservation and Disclosure
We may preserve, disclose or store User Content and Merchant Data if required to do so by Applicable Law or in the good faith belief that such preservation, disclosure or storage is reasonably necessary to: (i) comply with legal processes; (ii) comply with this Agreement; (iii) respond to claims that any User Content or Merchant Data violates the rights of any person; or (iv) protect the rights, property, or personal safety of Smile, customers and the public.
6. Anonymized Merchant Data
If you are a Merchant, you grant us a worldwide, perpetual, irrevocable, royalty-free, fully paid-up, non-exclusive, sublicensable and transferable license to anonymize and aggregate metrics and data related to the User Content and Merchant Data and all other use of the Services ("Anonymized Aggregated Data"), provided that the Anonymized Aggregated Data cannot be used to identify Merchant or Merchant's Users, customers, personnel or any other identifiable individual.
You agree that Smile: (i) has full ownership over Anonymized Aggregated Data; (ii) has full license to create derivative works and extract information from Anonymized Aggregated Data; (iii) may use Anonymized Aggregated Data to deliver, modify, update, correct and improve the Services or for any other purposes; and (iv) may disclose, sell and publish Anonymized Aggregated Data to any party through any means.
7. Compliance with Laws
a. Compliance with Laws
You represent and warrant that your use of the Services will comply with all Applicable Laws. It is your responsibility to determine whether the Services meets your obligations under any Applicable Law. Smile will not be liable if the Services do not meet your requirements under Applicable Law.
b. Privacy, Data Protection and Anti-Spam Laws
If you are a Merchant, part of your compliance with Applicable laws includes your compliance with privacy, data protection and anti-spam laws. You represent and warrant to Smile that:
- You will clearly post, maintain, and abide by a publicly accessible privacy notice on the digital properties from which the underlying data is collected that satisfies the requirements of applicable privacy and data protection laws.
- You will get and maintain all necessary permissions and valid consents required to lawfully transfer data to Smile and to enable such data to be lawfully collected, processed, and shared by Smile for the purposes of providing the Service or as otherwise directed by you.
- You will provide and obtain all notices and obtain all necessary consents required by applicable privacy and data protection laws to enable Smile to deploy cookies and similar tracking technologies (like web beacons or pixels) lawfully on and collect data from the devices of contacts and end users of the Service in accordance with and as described in our privacy policy.
- You will not use Smile to send emails, Wallet Pass notifications, or other electronic messages except in compliance with applicable marketing, privacy and anti-spam laws, including any applicable notice, consent, identification and unsubscribe requirements. Compliance may require you to turn off certain features, such as email notification.
- If you enable or use Wallet Passes, you will: (i) provide all notices and obtain all consents required by Applicable Law for the creation, issuance and updating of Wallet Passes and for any notifications delivered through them; (ii) ensure that all pass content, trademarks, logos, offers and notifications are accurate, lawful and do not infringe any third-party rights; and (iii) use promotional or location-triggered notifications only where you have obtained any consent required by Applicable Law and provided an effective means to withdraw that consent.
- You acknowledge that we have your prior written authorization to respond, at our discretion, to any data subject access requests we receive from your contacts made under privacy or data protection laws, or, alternatively, we may direct any such contacts to you so that you can respond to the request accordingly.
c. California Privacy Laws
If you are a Merchant, to the extent any personal information Smile processes in connection with your use of the Services is subject to the California Consumer Privacy Act of 2018 ("CCPA"): (a) Smile is the service provider and Merchant, or its affiliate, is the business; (b) Smile will not sell such personal information (as "sell" is defined in the CCPA); (c) Smile will not retain, use or disclose such personal information except to provide the Services (which may include us retaining backup copies for a reasonable period of time) or as otherwise set out in this Agreement; (d) Smile will not retain, use or disclose such personal information outside of the direct business relationship between Smile and Merchant; and (e) Smile certifies that it understands and will comply with the foregoing restrictions. Nothing in the foregoing restricts Smile from collecting, using or disclosing personal information where required by laws applicable to Smile.
8. Security
a. Security Measures
Smile will implement appropriate technical and organizational measures to protect Merchant Data and User Content (including personal information), taking into account the cost of implementation and the nature, context, scope and purposes of the processing. However, you understand that use of the Services necessarily involves transmission of the Merchant Data or the User Content over networks that are not owned, operated or controlled by us, and we are not responsible for any of your Merchant Data or User Content lost, altered, intercepted, copied or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your Merchant Data or User Content 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.
The Services are provided by us from data center facilities from which you 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.
b. Security Vulnerabilities
Smile is committed to maintaining the security of the Services, Merchant Data and User Content and understands the importance of working with the security community to identify and resolve security vulnerabilities.
If you become aware of a security vulnerability, please promptly notify us at security@smile.io and provide us with as much information as possible about its nature and scope. We will acknowledge all reported security vulnerabilities within 24 hours of receipt, and will work diligently to address any identified issues.
We will treat all reported security vulnerabilities confidentially to protect your identity and the security of the Services, and will not retaliate against you for reporting a security vulnerability in good faith.
c. Security Breach
If you become aware of any security breach in the Services, such as a loss or unauthorized use, disclosure of personal information in association with the services, you will promptly notify us. If you are a Merchant, Smile will notify you without undue delay on learning of an incident involving any loss of or unauthorized access to or disclosure of any personal information of which you are the controller. You will provide us with all reasonable assistance we request in the case of a security breach.
d. Maintenance and Repairs
Your access to Services may be occasionally suspended or restricted to allow for repairs, maintenance or the introduction of new facilities or 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.
9. Third-Party Services
a. Third-Party Services
The Services contain features or functionalities designed to interact and/or integrate with software, applications or services that are provided by third parties ("Third-Party Services"). To use these features or functionalities, you may be required to access or purchase Third-Party Services.
Wallet Passes rely on services provided by Apple and Google. You authorize Smile to make Merchant Data and User Content available to Apple or Google as reasonably necessary to create, issue, update and operate Wallet Passes, subject to the DPA and Applicable Law.
b. Responsibility
If you use, access or purchase Third-Party Services through the Services, you do so at your own risk. We are not responsible for any Third-Party Services or for any act or omission of any Third-Party Service provider. Smile does not own, operate or endorse any Third-Party Services and does not warrant any Third-Party Services. Third-Party Services are operated independently of us and we do not guarantee the availability of any Third-Party Services. If the provider of any such Third-Party Services ceases to make the Third-Party Services available for interoperation with Services, Smile may cease providing such features or functionality without entitling you to any refund, credit or other compensation. We may, but do not have to, preview, verify, flag, modify, filter, block or remove Third-Party Services. You must comply with all agreements and other legal requirements that apply to Third-Party Services and we advise you to review the terms of use and privacy policies for all Third-Party Services to ensure compliance and determine how they may use your Merchant Data and User Content.
c. Sharing with Third-Party Service Providers
If you access or purchase Third-Party Services, you grant: (i) us access to any accounts you have with such Third-Party Services and permission to share your Merchant Data and User Content with the Third-Party Service provider; and (ii) them permission to access or otherwise process your Merchant Data and use your User Content as required for the operation of the Third-Party Services. The Third-Party Service provider may import or export data related to your Accounts, activity and/or content and otherwise gather data from you and your customers. We are not responsible for disclosure, use, change to or deletion of your Merchant Data and User Content and will not be liable to you or any third party for access to your Merchant Data or User Content by Third-Party Services.
10. Disclaimer of Warranties
YOU UNDERSTAND AND AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES, CONDITIONS, REPRESENTATIONS OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THAT WE DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, TITLE, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, SMILE DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES NOT SET OUT IN THE DOCUMENTATION, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
11. Indemnification
You shall indemnify, defend and hold harmless Smile and its affiliates, parents, subsidiaries, licensors and partners and our and their respective directors, officers, employees, agents, service providers, contractors, licensors, suppliers, successors and assigns ("Indemnified Entities") from and against any claim, demand, or proceeding brought by a third party against Smile or its Indemnified Entities relating to (i) User Content or Merchant Data; (ii) actual or alleged violation of this Agreement; (iii) actual or alleged violations of Applicable Law, including any violations of your obligations of privacy to any person; or (iv) violations of your obligations to your customers relating to your loyalty reward program (such as reward points of your customers) as may be managed by the Services.
12. Limitation of Liability
TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL SMILE, OR ITS INDEMNIFIED ENTITIES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER FOR ANY: (I) LOSS OF USE, LOST PROFITS, LOST REVENUE, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES; (II) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA; OR (III) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES. IN NO EVENT WILL SMILE BE LIABLE FOR ANY THIRD-PARTY SERVICES, ACTIVITIES OF THIRD PARTIES, ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING, THEFT OR OTHER UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES OR YOUR ACCOUNTS OR THE INFORMATION CONTAINED IN YOUR ACCOUNTS, INCLUDING USER CONTENT.
IN NO EVENT WILL SMILE OR ITS INDEMNIFIED ENTITIES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, IN THE AGGREGATE, FOR AN AMOUNT EXCEEDING THE LOWER OF: (I) 100$ USD; AND (II) THE FEES ACTUALLY PAID OR PAYABLE BY YOU TO SMILE FOR THE SERVICES IN THE MONTH IMMEDIATELY PRECEDING THE DATE ON WHICH THE DAMAGES AROSE.
THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THIS SECTION APPLY NOTWITHSTANDING: (I) THE APPLICABLE LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, (II) WHETHER THE APPLICABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES; AND (III) ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY.
13. Term and Termination
a. Term
This Agreement will commence on the date you, or any of your Users, first access the Services and will terminate when Smile provides you with written notice that it is terminating this Agreement. Where a Subscription Term renews in accordance with your Selected Subscription Plan, it will be at the Service Fees or any increased rate provided that Smile has given you notice of such increase no less than 60 days prior to the renewal date. You may terminate the Selected Subscription Plan, or decline to renew the Subscription Term, in accordance with the terms thereof. Where there is no renewal process or term set out in your Selected Subscription Plan, the Subscription Term will be for a period of one month and will automatically renew for successive periods of one month each, unless you notify us that you do not wish to renew at least two weeks prior to the end of the then-current term, unless otherwise stated in your Selected Subscription Plan.
b. Suspension and Termination Rights
We reserve the right to immediately suspend your access to or terminate the Services in our sole discretion, including where you breach this Agreement or Applicable Law or fail to pay fees when due.
c. Effect of Termination
Upon expiration or other termination of the Selected Subscription Plan for any reason, your right to access and use the Services described in the Selected Subscription Plan will terminate.
d. Return of Merchant Data
At the end of the Subscription Term, if you are a Merchant, you will be entitled to extract certain Merchant Data of your customers, such as name, points balance, for a period of 48 hours following termination. Wallet Passes are issued under Smile's own Apple and Google issuer accounts and cannot be transferred to you or to another provider. The Merchant Data will be in a format determined by Smile. Following this period, Smile will have the right to delete all User Content and Merchant Data at any time and cancel your Accounts with us. Archived versions of the Services may include archived copies of User Content and Merchant Data, which may be retained by us for an archive cycle.
e. Publicity
You hereby grant Smile a license to display, reproduce, and use your name and logo for promotional and marketing purposes.
14. General
a. Force Majeure
We will not be responsible for failure or delay in our performance under this Agreement due to causes beyond our control, including labor disputes, strikes, wars, riots, terrorism, criminal acts of third parties, acts of God or governmental action.
b. Rights and Remedies
Except as expressly provided in this Agreement, the rights and remedies of both parties are not exclusive and are in addition to any other rights and remedies provided by law or at equity.
c. Entire Agreement
This Agreement represents the entire understanding between the parties with respect to the subject matter of this Agreement.
d. Further Assurances
You will execute such documents and perform such acts as may be necessary to give full effect to this Agreement.
e. Enurement and Assignment
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. This Agreement is binding on and will endure to the benefit of the parties and their respective permitted successors and assigns. We may assign this Agreement, in whole or in part, including any rights or obligations under this Agreement, in our sole discretion.
f. Waiver and Severability
A waiver of any term of this Agreement is effective only if it is in writing and signed by Smile and is not a waiver of any other term. If any term of this Agreement is found to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect, invalidate or render unenforceable: (i) any other term of this Agreement; or (ii) the same term in any other jurisdiction.
g. Conflict
In the event of any conflict between the main body of this Agreement and Selected Subscription Plan, as applicable, the main body of this Agreement will govern.
h. Governing Law and Jurisdiction
This Agreement is governed by and is to be construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law rule in any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods. You will bring any action or proceeding arising from or relating to this Agreement only in the courts located in Toronto, Ontario and you irrevocably submit to such exclusive jurisdiction and venue. Each party waives all rights it may have to a trial by jury in any legal proceeding arising out of or related to this Agreement.
i. Relationship
Nothing in this Agreement will be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
j. International Users
The Services are controlled, operated and administered by Smile (or its licensees) from its offices within Canada and is not intended to subject Smile 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 your responsibility. We 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.
k. Interpretation
In this Agreement: (i) the words "include", "includes" and "including" are not limiting; (ii) the word "or" is not exclusive; (iii) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (iv) headings and captions are not considered part of the Agreement but are for convenience only. If you have any questions about this Agreement or if you wish to provide any feedback with respect to the Services, please contact us at: help@smile.io.