TERMS OF SERVICE
Last Modified: April 21, 2023
These Smiley Gateway Terms of Service (“Terms”) are a binding agreement between you (“Developer”, “you” or “your”) or the entity you represent and Smiley Technologies, Inc. (“Smiley,” “we,” “us” or “our”) governing your use of Smiley’s APIs, other developer services, associated software, demo environment, and related documentation, information and data (collectively, “Smiley Gateway”). By using and accessing the Smiley Gateway, you agree to be bound by these Terms, our Privacy Policy and all other terms, policies, and guidelines applicable to your use and access of the Smiley Gateway, which may be amended by us from time to time. If you use the Smiley Gateway as an interface to, or in conjunction with, other Smiley services, then you agree to be bound by the terms for those other services. If you are using the Smiley Gateway on behalf of an entity, you represent and warrant that you have authority to bind that entity to these Terms and by accepting these Terms, you are doing so on behalf of that entity (and all references to “Developer”, “you” and/or “your” in these Terms refer to and include that entity and anyone else acting on your or that entity’s behalf).
You may not use the Smiley Gateway and may not accept these Terms if you are a person barred from using or receiving the Smiley Gateway under the applicable laws of any state, the United States or other countries including the country in which you are resident or from which you access and use the Smiley Gateway.
1. Use of Smiley Gateway
a. Registration
To access the Smiley Gateway, you may be required to provide certain information as part of the registration process or as part of your continued access and use of the Smiley Gateway. Any registration information you give to Smiley must be accurate and up to date, and you must inform us of any updates within a reasonable time. We may retain this information until it is no longer needed by us.
b. Compliance
You will use the Smiley Gateway and operate your websites and applications which access the Smiley Gateway (“Your Applications”) only as permitted by applicable law, regulation, and third-party rights. You will require your end users to comply with all applicable law, regulation, and third-party rights. You will not use the Smiley Gateway to encourage or promote illegal activity or violation of third-party rights or in a manner that is deceptive, unethical, false or misleading. You will not violate any other terms of service with Smiley.
c. Permitted Access
You will only access (or attempt to access) an API by the means described in the documentation of that API. If Smiley assigns you developer credentials, you must use them with the applicable Smiley Gateway. You will not misrepresent or mask either your identity or Your Application’s identity when using the Smiley Gateway or developer accounts.
d. Limitations
Your use of the Smiley Gateway is subject to certain limitations on access, calls and use as set forth in these Terms and other documentation. Smiley sets and enforces such limitations in our sole discretion. If Smiley believes, in our sole discretion, you have attempted to exceed or circumvent these limitations, your ability to use the Smiley Gateway may be temporarily or permanently blocked. If you would like to use the Smiley Gateway beyond these limits, you must obtain Smiley’s express written consent. Smiley, in our sole discretion, may decline such request or condition acceptance on your agreement to additional terms and/or charges for that use.
e. Open Source Software
Some of the software required by or included in our Smiley Gateway may be offered under an open source license. Open source software licenses constitute separate written agreements. For certain items within Smiley Gateway, open source software is listed in the documentation. To the limited extent the open source software license expressly supersedes the Terms, the open source license instead sets forth your agreement with Smiley for the applicable open source software.
f. Feedback
If you provide feedback or suggestions about our Smiley Gateway, then we (and those we allow) may use such information without obligation to you. By submitting feedback and suggestions, you grant a non-exclusive, perpetual, irrevocable, and royalty-free license to any intellectual property rights you may have in your feedback and suggestions to Smiley to use to improve any Smiley products or services. You acknowledge that submission of feedback and suggestions is voluntary and Smiley may consider or is developing technology that is the same or similar to your feedback or suggestions.
g. Non-Exclusivity
The Terms are non-exclusive. You acknowledge that Smiley may be developing, and may develop in the future, products, services websites and applications that may compete with Your Applications or any other products or services, and Smiley has no obligation to make any such products, services, websites or
applications available to you.
h. Updates
Smiley may update the Smiley Gateway at any time and may discontinue support for previous versions of the Smiley Gateway at Smiley’s sole discretion. Smiley will make reasonable efforts to notify you when a version of the Smiley Gateway will no longer be supported.
2. Your Applications
a. Your Applications and Monitoring
You agree to monitor the use and access of Your Applications for any activity that violates applicable laws, rules, and regulations or any provision of these Terms, including any fraudulent, inappropriate, or potentially harmful behavior, and you must promptly restrict any offending users of Your Applications from further access or use of Your Applications. You agree to provide a resource for users of Your Applications to report abuse of Your Applications. As between you and us, you are responsible for all acts and omissions of your end users in connection with Your Applications and their use of the Smiley Gateway, if any. You agree that you are solely responsible for posting any privacy notices and obtaining any consents from your end users required under applicable laws, rules, and regulations for their use of Your Applications.
YOU AGREE THAT SMILEY MAY MONITOR USE AND ACCESS OF THE SMILEY GATEWAY TO ENSURE QUALITY, IMPROVE SMILEY PRODUCTS AND SERVICES, AND VERIFY YOUR COMPLIANCE WITH THE TERMS. This monitoring may include Smiley accessing and using Your Applications, for example to identify security issues that could affect Smiley or its users. You will not interfere with this monitoring. Smiley may use any technical means to overcome such interference. Smiley may suspend access to the Smiley Gateway by you or Your Applications without notice if we reasonably believe that you are in violation of the Terms.
b. Ownership
Smiley does not acquire ownership in Your Applications, and by using our Smiley Gateway, you do not acquire any ownership of any rights in, title to, or interest in our products or services, the Smiley Gateway, the content that is accessed through our Smiley Gateway, any underlying technology and computer programming, and all derivative works of any of the foregoing.
c. User Privacy and Security
You are solely responsible for the security of data in Your Applications. You will use commercially reasonable efforts to protect user information collected by Your Applications from unauthorized access or use and will promptly report to your users any unauthorized access or use of such information to the extent required by applicable law.
You will comply with all applicable privacy laws and regulations including those applying to personal data.
You will provide and adhere to a privacy policy for Your Applications that clearly and accurately describes to users of Your Applications what user information you collect, access and store and how you use and share such information (including for advertising) with Smiley and other third parties.
You will maintain commercially reasonable administrative, organizational, technical and other controls to ensure the privacy, security and confidentiality of the Smiley Gateway.
3. Prohibitions and Confidentiality
a. Smiley Gateway Prohibitions
When using the Smiley Gateway, you will not, or nor will you permit another party, to:
1.Sublicense access to the Smiley Gateway for use by a third party. Consequently, you will not create a service that functions substantially the same as the Smiley Gateway or any other Smiley service.
2. Sell, rent, lease, sublicense, redistribute or syndicate access to the Smiley Gateway.
3. Perform an action with the intent of introducing to Smiley products and services any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature.
4. Defame, abuse, harass, stalk, or threaten Smiley or others.
5. Interfere with or disrupt the Smiley Gateway, the servers or networks providing the Smiley Gateway, or any Smiley products or services.
6. Reverse engineer or attempt to extract the source code from any API or any related software or any Smiley products or services, except to the extent that this restriction is expressly prohibited by applicable law.
7. Remove, obscure, or alter any Smiley terms of service or any links to or notices of those terms, or any copyright, trademark, or other proprietary rights notices.
b. Confidentiality
Developer credentials are intended to be used by you and identify Your Applications. You agree to keep your credentials confidential and to prevent and discourage others from using your credentials for Your Applications. Developer credentials may not be embedded in open source projects.
Our communications to you and our Smiley Gateway may contain Smiley’s confidential information. Smiley’s confidential information includes any materials, documents, data, communications, and information that are marked confidential and/or provided to you in connection with your access to, or use of, the Smiley Gateway or that would normally be considered confidential under the circumstances. If you receive any such confidential information, then you will not disclose it to any third party without Smiley’s prior written consent, which may be withheld in Smiley’s sole discretion. Smiley’s confidential information does not include
information that you independently developed, that was rightfully given to you by a third party without confidentiality obligation, or that becomes public through no fault of your own. You may disclose Smiley confidential information when compelled to do so by law only if you provide us reasonable prior notice, unless a court orders that we not receive notice.
4. Content
a.Content Accessible Through our Smiley Gateway
Our Smiley Gateway may contain some third-party content (such as text, images, videos, audio, or software). Any such content is the sole responsibility of the person that makes it available. We may sometimes review such third-party content to determine whether it is illegal or violates our policies or the Terms, and we may remove or refuse to display such content. Smiley is not responsible for the availability, accuracy, safety or legality of such third-party content and any use of such third-party content by you, shall be at your own discretion and risk and you will be solely responsible for any damage to you or your end user’s resulting from such any aspect of such third-party content. Finally, content accessible through our Smiley Gateway may be subject to intellectual property rights, and, if so, you may not use it unless you are licensed to do so by the owner of that content or are otherwise permitted by law. Your access to the content provided by the API may be restricted, limited, or filtered in accordance with applicable law, regulation, and policy.
b. Submission of Content
Certain areas within the Smiley Gateway may allow for the submission of content, and except as expressly provided in these terms, Smiley does not acquire any ownership of any intellectual property rights in the content that you submit using our Smiley Gateway. By submitting, posting or displaying content to or from the Smiley Gateway through Your Applications, you give Smiley a perpetual, irrevocable, worldwide, sublicensable, royalty-free, and non-exclusive license to use, host, store, modify, communicate, and publish such content. You represent that, before you submit content via the Smiley Gateway and Your Applications, you will have the necessary rights (including the necessary rights from your end users) to grant us the license.
c. Retrieval of Content
When an end user’s non-public content is obtained through the Smiley Gateway, you may not expose that content to other end users or to third parties without explicit opt-in consent from that end user.
d.Prohibitions on Content
Unless expressly permitted by the content owner or by applicable law, you will not, nor will you permit another party to, do the following with content returned from the Smiley Gateway:
1. Scrape, access, download, build databases, or otherwise create permanent copies of such content, or keep cached copies longer than permitted by the cache header;
2.Copy, translate, modify, create a derivative work of, sell, lease, lend, sublicense, distribute, or publicly display any such content;
3. Misrepresent the source or ownership; or
4.Remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or falsify or delete any author attributions, legal notices, or other labels of the origin or source of material.
5. Publicity
“Marks” is defined as the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party. Except where expressly stated, these Terms do not grant either party any right, title, or interest in or to the other party’s Marks. All use by you of Smiley’s Marks (including any goodwill associated therewith) will inure to the benefit of Smiley.
You agree to display any attribution(s) required by Smiley as described in the documentation for the Smiley Gateway. Smiley hereby grants to you a nontransferable, nonsublicenseable, nonexclusive license while the Terms are in effect to display the Smiley’s Marks for the purpose of promoting or advertising that you use the Smiley Gateway as set forth in any brand guidelines of Smiley. You will not make any statement regarding your use of Smiley Gateway which suggests partnership with, sponsorship by, or endorsement by Smiley without Smiley’s prior written approval.
In the course of promoting, marketing, or demonstrating the Smiley Gateway you are using and the associated Smiley services, Smiley may produce and distribute incidental depictions, including screenshots, video, or other content from Your Applications, and may use your company or product name. You grant us all necessary rights for such purposes.
You will not, at any time, challenge or assist others to challenge the validity of the Smiley Marks or their registration (except to the extent you cannot give up that right by law) and you will not attempt to register any trade names, trademarks, service marks, logos or domain names confusingly similar to the Smiley Marks.
Smiley reserves the right to terminate your license to display the Smiley’s Marks at any time and for any reason.
6. Termination
a. Termination
You may
stop using our Smiley Gateway at any time with or without notice. Further, if you want to terminate the Terms, you must provide Smiley with prior written notice and upon termination, cease your use of the applicable Smiley Gateway. Smiley reserves the right to terminate the Terms with you or suspend or discontinue the Smiley Gateway or any portion or feature or your access thereto for any reason and at any time without liability or other obligation to you.
b. Your Obligations Post-Termination
Upon any termination of the Terms or suspension or discontinuation of your access to a Smiley Gateway, you will immediately stop using the Smiley Gateway, cease all use of the Smiley Marks, and delete any cached or stored content that was permitted by the cache header. Smiley may independently communicate with any account owner whose account(s) are associated with Your Applications and/or your developer credentials to provide notice of the termination, suspension or discontinuation of your right to use the Smiley Gateway.
At Smiley’s request, you will certify your deletion of any part of the Smiley Gateway and/or Smiley’s confidential information in your possession or control in writing that is signed by you or your authorized representative who has the authority to bind you.
c. Surviving Provisions
When the Terms come to an end, those terms that by their nature are intended to continue indefinitely will continue to apply, including but not limited to: Sections 3.b, 4, 6, 7, and 8.
7. Liability for our Smiley Gateway
a.WARRANTIES
NO CONDITIONS, WARRANTIES OR OTHER TERMS APPLY TO ANY SERVICE, SOFTWARE, OR OTHER PRODUCTS OR SERVICES SUPPLIED BY SMILEY OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, SUPPLIERS, LICENSORS, LICENSEES, ASSIGNS, OR SUCCESSORS (“RELATED PARTIES“) UNDER THE TERMS UNLESS EXPRESSLY STATED SET OUT IN THE TERMS.
EXCEPT AS EXPRESSLY SET OUT IN THE TERMS, SMILEY DOES NOT MAKE ANY SPECIFIC PROMISES ABOUT THE SMILEY GATEWAY, INCLUDING WITHOUT LIMITATION THE SPECIFIC FUNCTIONS OF THE SMILEY GATEWAY, OR THEIR RELIABILITY, AVAILABILITY, OR ABILITY TO MEET YOUR NEEDS AND USE OF AND ACCESS TO THE SMILEY GATEWAY IS AT YOUR SOLE RISK. WE PROVIDE, AND YOU ACCEPT, THE SMILEY GATEWAY “AS IS” AND “AS AVAILABLE”.
SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY PROVIDED FOR IN THE TERMS, TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ANY AND ALL WARRANTIES, GUARANTEES, CONDITIONS, REPRESENTATIONS, AND UNDERTAKINGS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY.
b.LIMITATION OF LIABILITY
WHEN PERMITTED BY LAW, SMILEY AND ITS RELATED PARTIES WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA; FINANCIAL LOSSES; OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR OTHER LIABILITY, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF SMILEY FOR ANY CLAIM UNDER THE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US TO USE THE APPLICABLE SMILEY GATEWAY (OR, IF WE CHOOSE, TO SUPPLYING YOU THE SMILEY GATEWAY AGAIN) DURING THE SIX MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
IN ALL CASES, SMILEY AND ITS RELATED PARTIES WILL NOT BE LIABLE FOR ANY EXPENSE, LOSS, OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE OR THAT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH EXPENSE, LOSS OR DAMAGE.
c. Indemnification
Unless prohibited by applicable law, you will defend, indemnify and hold Smiley, and its affiliates, Related Parties and users, harmless against any and all claims, liabilities, damages, losses, costs, fees (including legal fees), and expenses arising out of, in connection with or relating to any allegation, claim, action or legal proceeding by a third party to the extent arising from:
1. your or your end user’s use or misuse of the Smiley Gateway;
2. your or your end user’s violation or alleged violation of any of the Terms; or
3. any content, data, technology or materials routed into, provided, contributed, or used with the Smiley Gateway by you, those acting on your behalf, or your end users.
Smiley may, at its sole discretion, elect for you to assume control of the defense of any
such claim, action or legal proceeding for which you are required to indemnify Smiley and its Related Parties under this Section. If the defense or settlement is assumed by you, Smiley may at any time thereafter elect to appoint its own counsel (at its own expense) or Smiley may take over control of the defense and settlement of any such claim, action or legal proceeding. You will not settle any claim, action or legal proceeding without Smiley’s prior written consent. Both parties will provide reasonable assistance to the other as may be required in order to defend any relevant claim, action or legal proceeding.
8. General Provisions
a. Modification
We may modify the Terms or any portion of the Terms at any time. You should look at the Terms regularly. We will post notice of modifications to the Terms within the documentation of the Smiley Gateway and/or to our website. Changes will not apply retroactively and will become effective no sooner than 30 days after they are posted. But changes addressing new functions for the Smiley Gateway or changes made for legal reasons will be effective immediately. If you do not agree to the modified Terms for the Smiley Gateway, you should discontinue your use of the Smiley Gateway. Your continued use of the Smiley Gateway constitutes your acceptance of the modified Terms.
b. General Legal Terms
The Terms do not create any third-party beneficiary rights or any agency, partnership, or joint venture. Nothing in the Terms will limit either party’s ability to seek injunctive relief. We are not liable for failure or delay in performance to the extent caused by circumstances beyond our reasonable control. If you do not comply with the Terms, and Smiley does not take action right away, this does not mean that Smiley is giving up any rights that it may have (such as taking action in the future). If any of the provisions of these Terms are held by a court or other tribunal of competent jurisdiction to be void or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary and replaced with a valid provision that best embodies the intent of these Terms, so that these Terms shall remain in full force and effect. The Terms are the entire agreement between you and Smiley relating to its subject and supersede any prior or contemporaneous agreements on that subject. For information about how to contact Smiley, please visit our contact page.
c. Injunctive Relief
You acknowledge that the limitations and restrictions in the Terms are necessary and reasonable to protect Smiley, and expressly agree that monetary damages may not be a sufficient remedy for your breach of the Terms. Accordingly, you agree that Smiley will be entitled to seek temporary or permanent injunctive relief against any violation or threatened violation of such limitations or restrictions in any court of competent jurisdiction.
d. Applicable Law
The laws of the state of Arkansas, excluding Arkansas’s conflict of laws rules, will apply to any disputes arising out of or related to the Terms or the Smiley Gateway. ALL CLAIMS ARISING OUT OF OR RELATING TO THE TERMS OR THE SMILEY GATEWAY WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF PULASKI COUNTY, ARKANSAS, USA, AND YOU AND SMILEY CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
e. Assignment
Smiley may transfer or assign the Terms, including any rights and licenses granted under it, to a third party, but you may not.
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