Web Service Terms of Use

PLEASE CAREFULLY READ THE FOLLOWING SMILE MEDIA WEBSITE TERMS OF USE ("TERMS") BEFORE ACCESSING OR USING THE SMILE MEDIA WEBSITE ("WEBSITE"). BY ACCESSING OR USING THE WEBSITE, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO CONSENT TO THESE TERMS AND AGREE TO BE BOUND BY THESE TERMS IN THEIR ENTIRETY. IF YOU DO NOT AGREE TO THESE TERMS IN THEIR ENTIRETY, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE WEBSITE.

1. The Website

The Website is owned and operated by SMILE media ("SMILE media," "we," "us," "our," or similar pronouns). As used in these Terms, the term "Website" shall also refer to the logos, designs, text, graphics, software, other content, and materials available through the Website and the selection and arrangement thereof (collectively, "Content"), and the SMILE media hardware, software, and networks associated with making the Website available to you (collectively, "SMILE media"). Unless explicitly stated otherwise, any new features, functionality, or services that augment or enhance the Website in the future shall be considered part of the Website and subject to these Terms.

By using or accessing the Website, you represent and warrant that: (a) you are 18 years of age or older; (b) if you are under the age of majority in your jurisdiction, you have your parent's or legal guardian's authorization to use and access the Website and to agree to these Terms; (c) you own or have authorization to use a personal computer to access the Website; and (d) you will use the Website in accordance with these Terms.

You acknowledge that the Website is subject to outages, slowdowns, or other interruptions. You further acknowledge that we are not responsible for performance degradation, interruption, or delays arising from any source. SMILE media will not be liable to you if the Website is unavailable at any given time. You agree that your sole remedy for any Website unavailability shall be to terminate your use of the Website.

2. Access

You are solely responsible for providing any hardware, systems, and software programs you use to access the Website, and any associated fees, charges, and expenses. For example, if you choose to access the Website through your personal computer, you are required to obtain at your own cost a compatible personal computer and an Internet access plan from a service provider.

3. Modification of these Terms; Termination

If you do not agree with any of these Terms, please do not use the Website. SMILE media reserves the right, in its sole discretion, to modify these Terms at any time without further notice. The most recent modification date will be noted by the "Last Updated" date below. Your continued use of the Website after any such modification constitutes your acceptance of these Terms as modified. If you register for or use additional features available as a part of the Website, additional terms and conditions, rules, policies, and disclaimers may apply. SMILE media may, in its sole discretion, terminate, change, modify, suspend, make improvements to, or discontinue any aspect of the Website, temporarily or permanently, including the availability of any features of the Website or access to any parts of the Website, at any time with or without notice to you. You agree that SMILE media shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Website.

You may terminate your use of the Website at any time. SMILE media may terminate your access to or use of the Website at any time for any reason with or without notice to you. Upon any termination of your use of the Website, you must promptly destroy all Content obtained through the Website, as well as any copies of the Content. Sections 3, 5, 7, 9, 10, 11, 12, 14, and 16 and any other provisions that by their nature should survive termination shall so survive any termination of your use of the Website. You agree that SMILE media shall not be liable to you for any termination of your use of or access to the Website.

4. Registration and Account Security

In order to participate in certain features of the Website, you may be required to register for a Website account or receive access to a SMILE media client account (each, an "Account"). If you choose to register for or receive an Account, you agree to: (a) provide true, accurate, and complete information about yourself as prompted by the registration form or as requested by your SMILE media contact; and (b) maintain and promptly update such information to keep it true, accurate, current, and complete as permitted through the functionality of the Website or through your SMILE media contact. You acknowledge and agree that SMILE media will have no liability associated with or arising from your failure to maintain accurate information about yourself, including, without limitation, your failure to receive important information and updates about the Website. If SMILE media has reasonable grounds to suspect that the information you provided on the registration form or otherwise is untrue, inaccurate, or incomplete, SMILE media may suspend or terminate your Account and refuse any and all current or future use of the Website (or any portion thereof). For SMILE media clients, you represent and warrant that you have duly authorized those accessing your client section of the Website using your login credentials to do so and that you will be directly responsible for the acts or omissions of those who use your login credentials to access the Website. You are responsible for all use of your Account under any user name or password (or login credentials) by any person or entity and for ensuring that use of your Account complies fully with the provisions of these Terms. You are solely responsible for protecting the confidentiality of your user name and password.

5. Privacy

For information about SMILE media' privacy practices, please read the SMILE media Privacy Policy at ("Privacy Policy"). The Privacy Policy is incorporated into these Terms and explains how SMILE media collects, uses, shares, and secures your personal information in connection with the Website. By using the Website, you agree to the terms of the Privacy Policy.

6. License Grant

SMILE media grants to users a limited, non-exclusive, non-transferable license to access and use the Website (including any Content) strictly in accordance with these Terms. SMILE media may terminate this license at any time for any reason. You may use the Website on one personal computer for your own personal, non-commercial use. No part of the Website may be reproduced in any form or incorporated into any information retrieval system, electronic, mechanical, or otherwise. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer, or transfer the Website or any portion thereof. You may not use any device, software, or routine to interfere or attempt to interfere with the proper working of the Website and you may not take any action that imposes an unreasonable or disproportionately large load on the SMILE media.

7. Proprietary Rights

All ownership rights and title in and to the Website, including all Content therein, are owned by SMILE media and its licensors and protected under applicable copyrights, trademarks, and other proprietary (including, without limitation, intellectual property) rights and international treaties. Except as expressly stated in these Terms, you may not reproduce, perform, create derivative works from, republish, upload, post, transmit, or distribute in any way the Website, or any portion therein, including, without limitation, any Content, without the prior written permission of SMILE media. All rights not expressly granted to you through these Terms are retained by SMILE media and its licensors.

Nothing in these Terms grants to you any right to use any of SMILE media' trademarks, service marks, logos, domain names, or other indicia of origin.

8. User Conduct

In using or accessing the Website, you agree:

not to disrupt or interfere with the security of, or otherwise abuse, the Website, or any services, system resources, accounts, servers, or networks connected to or accessible through the Website or any affiliated or linked websites;
not to disrupt or interfere with any other user's enjoyment of the Website;
not to upload, post, or otherwise transmit through or on the Website any viruses or other harmful, disruptive, or destructive files;
not to use, frame, or utilize framing techniques to enclose any SMILE media trademark, logo or other proprietary information (including the images available through the Website, the content of any text or the layout/design of any page or form contained on a page) without SMILE media' express written consent;
not to use meta tags or any other "hidden text" utilizing a SMILE media name, trademark, or product name without SMILE media' express written consent;
not to "deeplink" to the Website without SMILE media' express written consent;
not to create or use a false identity on the Website;
not to collect or store personal data about others;
not to attempt to obtain unauthorized access to the Website or portions of the Website that are restricted from general access;
not to post any material that is knowingly false and/or defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person's privacy, or otherwise in violation of any law; and
not to post any copyrighted material unless the copyright is owned by you.

In addition, you agree that you will comply with all applicable local, state, national, and international laws and regulations that relate to your use of or activities in connection with the Website.

You agree to immediately notify us if you suspect fraudulent or abusive activity, or any activity in violation of these Terms. If you so notify us, or we otherwise suspect fraudulent or abusive activity, you agree to cooperate with us in any fraud investigation and to use any fraud prevention measures we prescribe.

9. Warranties

THE WEBSITE, IN WHOLE AND IN PART (INCLUDING, WITHOUT LIMITATION, ALL CONTENT AND USER MATERIALS), IS PROVIDED, TRANSMITTED, DISTRIBUTED, AND MADE AVAILABLE "AS IS" WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SMILE MEDIA MAKES NO WARRANTY: (A) THAT THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE; (B) THAT DEFECTS OR ERRORS IN THE WEBSITE WILL BE CORRECTED; (C) THAT THE WEBSITE WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS; (D) AS TO THE QUALITY, ACCURACY, COMPLETENESS, AND VALIDITY OF ANY INFORMATION OR MATERIALS YOU RECEIVE IN CONNECTION WITH THE WEBSITE, INCLUDING, WITHOUT LIMITATION, THIRD PARTY SUBMITTED USER MATERIALS; (E) THAT YOUR USE OF THE WEBSITE WILL MEET YOUR REQUIREMENTS; OR (F) THAT TRANSMISSIONS OR DATA WILL BE SECURE.

11. Limitation Of Liability

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE WEBSITE AND THE RESULTS AND PERFORMANCE THEREOF (INCLUDING, WITHOUT LIMITATION, YOUR USE OF ANY THIRD PARTY SUBMITTED USER MATERIALS, THIRD PARTY APPLICATIONS, WEBSITES, AND ANY GOODS, SERVICES, OR CONTENT YOU MAY RECEIVE IN CONNECTION WITH LINKS CONTAINED WITHIN THE WEBSITE).

IN NO EVENT AND UNDER NO CAUSE OF ACTION, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, SHALL SMILE MEDIA AND ITS AFFILIATED ENTITIES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AUTHORIZED AGENTS (COLLECTIVELY, THE "SMILE MEDIA PARTIES") BE LIABLE FOR ANY DAMAGES, CLAIMS, OR LOSSES INCURRED (INCLUDING, WITHOUT LIMITATION, COMPENSATORY, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES), HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY ARISING FROM OR IN CONNECTION WITH THE FOLLOWING CIRCUMSTANCES, EVEN IF A SMILE MEDIA PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS, OR LOSSES: (A) THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY CONTENT; (B) YOUR USE OR INABILITY TO USE THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY CONTENT; (C) ANY USER MATERIALS, WHETHER PROVIDED BY YOU OR ANY THIRD PARTY, OR YOUR USE OF OR RELIANCE UPON ANY USER MATERIALS; (D) ANY THIRD PARTY APPLICATION, WEBSITE, OR WEBSITE USED IN CONNECTION OR AVAILABLE THROUGH THE WEBSITE; (E) UNAUTHORIZED ACCESS TO OR ALTERATION OR LOSS OF YOUR TRANSMISSIONS OR DATA OR OTHER INFORMATION THAT IS SENT OR RECEIVED IN CONNECTION WITH THE WEBSITE; (F) ERRORS, SYSTEM DOWN TIME, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION OR WEBSITE INTERRUPTIONS; OR (G) ANY MODIFICATION, DELETION, OR ADDITION TO YOUR USER MATERIALS BY SMILE MEDIA OR ANOTHER WEBSITE USER.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SMILE MEDIA' CUMULATIVE LIABILITY TO YOU ARISING FROM 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 FOR THE WEBSITE. IF NO AMOUNTS WERE PAID, YOUR SOLE REMEDY UNDER THESE TERMS SHALL BE TO DISCONTINUE ANY USE OF THE WEBSITE.

12. Exceptions

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER, EXCLUSION, OR LIMITATION OF CERTAIN WARRANTIES, LIABILITIES, AND DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, SMILE MEDIA' LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

13. Third Party Applications, Links, and Content

The Website includes links or direct connections to other websites, content, or resources made available to you from third parties. For example, the Website may provide direct links to clients or social networking services. You acknowledge that SMILE media has no control over any such third party applications, websites, content, or resources, which are made available by companies or persons other than SMILE media. You acknowledge and agree that SMILE media is not responsible for the availability of any such third party applications, websites, content, or resources. You further acknowledge that SMILE media is not liable to you for any loss or damage which may be incurred by you as a result of these third party applications, websites, content, or resources.

14. International Users

The Website is controlled, operated, and administered by SMILE media from its offices within the United States. SMILE media makes no representation that materials on the Website are appropriate or available for use at other locations outside of the United States and access to them from territories where the contentavailable through the Website is illegal is prohibited. If you access this Website from a location outside of the United States, you are responsible for compliance with all local laws.

15. General Terms

Export Laws. You may not use the Website or export the Content in violation of United States export laws and regulations. The Website and Content may not be used or otherwise exported or re-exported: (a) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Syria, or any other country to which the United States has embargoed goods; or (b) to anyone on the United States Treasury Department's list of specially designated nationals or on the United States Commerce Department's Table of Deny Orders.

Force Majeure. SMILE media will not be liable in any amount for failure to perform any obligation under these Terms if such failure is caused by the occurrence of any unforeseen contingency beyond its reasonable control, including, without limitation, Internet outages, communications outages, fire, flood, or war.

Headings. The section titles in these Terms are provided solely for convenience and have no legal or contractual significance.

Notices. You agree that SMILE media may provide you with notices in connection with the Website by e-mail, regular mail, or postings on the Website.

Waiver. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.

Entire Agreement; Limitation of Actions. The Terms constitute the entire agreement between SMILE media and you with respect to your use of the Website. To the extent permitted by law, any cause of action you may have with respect to the Website must be commenced within one (1) year after the claim or cause of action arises, notwithstanding any statutes of limitation to the contrary.

Indemnification. You agree to indemnify and hold harmless the SMILE media Parties from any loss, liability, claim, or demand, including costs and reasonable attorneys' fees, made by any third party due to or arising out of your use of the Website or arising from your breach of these Terms, including any representation or warranty set forth herein. As a part of your indemnification obligations, you agree to indemnify the SMILE media Parties for any claims or suits arising from User Materials you provide and your use of any Community Feature. Severability. If any provision of these Terms shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

Applicable Law and Disputes. These Terms shall be governed by and construed in accordance with the laws of Massachusetts, without resort to its conflict of law provisions. In the event of a dispute arising out of these Terms or your use of the Website (or any portion herein), the proper jurisdiction and venue will be the state or federal courts residing in Strafford County, New Hampshire. You consent to the exercise of personal jurisdiction of these courts over you in the event of such a dispute.

Relationship of the Parties. Nothing in these Terms will be construed as creating a joint venture, partnership, employment, or agency relationship between you and SMILE media, and you do not have any authority to create any obligation or make any representation on SMILE media' behalf. You may not assign these Terms by operation of law or otherwise, without SMILE media' written consent. Subject to the foregoing, these Terms will be binding on, inure to the benefit of, and be enforceable against you and SMILE media and their respective successors and assigns.