Effective Date: September 28, 2015
1 Terms and Acceptance
This Terms of Service agreement, which includes the BINDING ARBITRATION PROVISION CONTAINED IN SECTION 11 (the “TOS”) must be accepted by you in order to use Smile’s Service, as defined below. The Service is applicable to the following user classes: (1) Organization Administrator, who initially sets up the Service account and who can create, edit, suspend, set access controls for, and remove Organization Administrators, Team Administrators, Teams, and Users within your Organization; (2) Team Administrator, who can add and remove Organization Users within their Team; (3) Organizational User, whose access is subject to controls of either a Team Administrator or an Organization Administrator; (4) Individual User, who does not belong to an Organization. Organization Administrators and Team Administrators are both referred to in this TOS as Administrative Users.
The terms “you” and “users” and “your” encompass all users, including Administrative Users. This is an agreement between you and SmileOnMyMac LLC dba Smile (“Smile” or “we” or “our” or “us”) who will be providing its Service subject to this TOS.
By using or accessing the Service, you are legally bound to this TOS and documents incorporated by reference herein. If you do not agree with this TOS, or you lack the authority to enter into it, you may not use the Service.
This TOS governs your use of the Service and describes your rights and obligations in using the Service. Smile reserves the right to change the terms of this TOS. When Smile makes a material change to the TOS, we will provide prior notice via email or by posting a notice on the Service stating the effective date of the change. Your continued use of the Service after the effective date of a revised TOS demonstrates your acceptance of the new terms. If you do not accept our updated terms, your sole remedy is to cancel your account and stop using the Service.
Smile shall use commercially reasonable efforts and industry accepted methods to ensure the reliability and security of the Service, but Smile is not responsible for unauthorized access to Your Data or the unauthorized use of the Service. You are responsible for keeping your account credentials, including username and password, confidential. You are solely responsible for the use of the Service and all activities that occur under your account, including use of the Service by any employee, any person to whom you have given access to the Service and any person who gains access to Your Data or this Service as a result of your failure to use reasonable security precautions, even if you did not authorize such use.
By accessing or using the Service, you affirm that you are at least 18 years of age or have reached the age of majority in your jurisdiction.
2 Description of Service
The Service means TextExpander’s system for creating, editing, and administering short abbreviations (“Snippets”) which expand into larger pieces of plain or rich text, images, and/or scripts, the website https://textexpander.com (the “Site”), and all Smile’s software used to perform expansion on specific platforms including TextExpander® (collectively “Software”). This TOS also applies to any modifications and new features added to the Service. Smile reserves the right to modify or discontinue the Service, in whole or in part, any feature or functionality thereof or any pricing plan, on reasonable notice. The Service does not include Your Data, as defined in Section 4 below, or any software application or service provided by you or a third party which you use in connection with the Service. The Service does not include Smile’s object code for certain application. See Section 3.5.
Snippet groups are controlled either by an Individual User, Organization user, or an Organization. Subject to access controls, an Organization User may be able to create and edit snippet groups and snippets, and share them with others, both within and outside the Organization. An Organization User has the option to set control of any snippet group they create, to either such user or to the Organization to which he or she belongs.
If an Organization User is removed from their Organization and is not a member of any additional Organizations, that user becomes an Individual User. The Individual User loses access to snippets and snippet groups controlled by the Organization. The Individual User retains access to snippets and snippet groups controlled by that user or otherwise shared with that user and may create snippet groups and snippets and may share these with other Users.
The Service is not intended for use by users employed by any federal, state or local government.
When you use a Service Plan which includes support, you may contact us with a request for support at https://textexpander.com/support. We will make commercially reasonable efforts to respond to emails requesting support within 24 hours.
3 Access and Use of Service
3.1 Subject to your payment obligation and compliance with this TOS, you may access and use the Service only for lawful, authorized purposes. Administrative Users are responsible for all actions taken by or in the name of accounts they administer including, without limitation, all Team accounts and any independent contractors to whom you may grant access. You acknowledge that Smile can terminate your account if you violate this TOS.
3.3 Beta Phase. The Service will be offered on a Beta Phase basis, which Smile anticipates will last until early 2016. Smile will provide you with 30 days advance notice by email of the termination of the Beta Phase.
Special Provisions for Trial Period and Beta Phase.
3.4 No Warranty/Nonliability. The following shall apply to the Free Trial Period and Beta Phase:
YOU EXPRESSLY AGREE THAT UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE LOSS OF YOUR DATA, EVEN IF WE HAVE BEEN INFORMED OF THE CONSEQUENCES OF SUCH LOSS PRIOR TO OR DURING THE FREE TRIAL OR BETA PHASE. NOTWITHSTANDING SECTION 6.3-6.5 (LIMITED WARRANTIES AND DISCLAIMERS) DURING THE TRIAL PERIOD AND BETA PHASE THE SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES. FURTHER, NOTWITHSTANDING SECTION 7.1 and 7.2 (LIMITATION OF LIABILITY), UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, DIRECT, INDIRECT, PUNITIVE, OR OTHER DAMAGES OF ANY KIND OR NATURE WHATSOEVER STEMMING FROM OR ARISING OUT OF YOUR USE OF THE SERVICE DURING ANY TRIAL PERIOD OR BETA PHASE.
3.5 This is a subscription to the Service. Subject to the limited rights expressly granted in this TOS, Smile reserves all rights, title, and interest in and to the Service, including all related intellectual property rights. The Software contains confidential and proprietary information of Smile protected by intellectual property and other laws. The Software does not include Smile OS X and iOS applications. These applications will require a license from Smile, the terms of which you will need to accept, which can be found at https://textexpander.com/policy-archive/licenses
3.6 In its sole discretion, Smile may make available to you the Smile TextExpander Application Programming Interface and related code, documentation, data and other information provided with the foregoing (collectively “API”). You undertake use of our API at your sole risk and subject to your representations, warranties, and releases, which follow. You represent and warrant to Smile that the API will only be used by your competent programmers under the supervision of a competent manager. You are solely responsible for any data modifications, damage and/or loss caused by or related to your use of the API. Notwithstanding any other provision of this TOS, (a) we provide the API “AS IS” without any warranty of any kind, express or implied, and hereby disclaim all such warranties; and (b) you release Smile from, and will defend, indemnify, and hold Smile harmless from any claims arising from or related to your use of our API including, without limitation, claims that Your Data has been modified, damaged and/or lost due to the use of the API.
4 Your Data and Your Responsibilities
You irrevocably and perpetually freely license to Smile any feedback or suggestions you send regarding the Service, with no obligation to you.
4.2 Your responsibilities.
(a) You shall: (i) be solely responsible for your compliance with this TOS, including that of your users’ conduct; (ii) be solely responsible for the accuracy, integrity, quality, content or legality of Your Data and all means you used to acquire Your Data; (iii) prevent any unauthorized access to or use of the Service and notify us promptly of same; (iv) use the Service only in compliance with this TOS and all applicable laws and government regulations. (v) bear all risks and liabilities associated with the use of Your Data or any violation by you or your Organization of the TOS; (vi) comply with all policies Smile publishes in connection with the Service; (vii) promptly notify Smile if you learn of a security breach related to the Service.
(b) You shall not use the Service to store, transmit or post on the Internet any content or material including but not limited to, Your Data that: (i) infringes upon or otherwise violates any third party’s privacy or intellectual property rights; (ii) is libelous, obscene, or otherwise tortious; (iii) contains malicious code, software viruses or any other computer code designed to interrupt, interfere with, or disrupt the integrity or performance of the Service or any component thereof; (iv) is unlawful or that you have no right to disclose under applicable law or by agreement.
(c) You shall not: (i) sell, rent, resell, transfer or assign (except as permitted in Section 14.2) the Service or its use; (ii) have Users greater in number than permitted for your account; (iii) abuse or misuse the Service, which Smile will determine in its sole discretion; (iv) make the Service available to anyone other than users; (v) attempt or permit others to attempt to obtain unauthorized access to the Service or its related components, systems or networks; (vi) take any action which decreases other users’ ability to engage in a real-time exchange using the Service; (vii) adapt, modify or hack the Service including by using any non-public Smile API’s; (viii) reproduce, copy, publicly perform or create, or attempt to create, any derivative works based on the Service or any component thereof or make or have made any functionality or feature of the Service.
(d) Smile may choose to review, remove, or disable public content, for any reason or no reason, but has no obligation to do so. We are not responsible for the accuracy, content integrity, quality or legality of Your Data. The Service allows you to share Your Data with others. Please be careful about what you share.
When you use a Service plan which includes a fee, you will be required to select a payment plan and provide accurate billing information. You are responsible for updating your billing information as necessary. You agree to pay Smile in advance on a monthly basis according to the terms of your Service plan, as detailed on the pricing page located at https://textexpander.com/pricing (“Pricing Page”), incorporated by reference herein. You authorize Smile or its agent to bill you as stated in the Pricing Page.
Smile reserves the right to change prices for your use of the Service at any time with 30 days notice via email. Your continued use of the Service after the price change constitutes your agreement to pay the changed amount. You are responsible for any taxes associated with the Service, such as sales or value-added taxes, except for taxes imposed on Smile’s income with respect to the Service.
If you dispute any charges, you must inform Smile within sixty (60) days after your invoice date. All amounts paid are non-refundable.
Full payment must be made by the date specified in Smile’s monthly billing statement to you. Should payment not be timely made, Smile has the right to assess a finance charge of 1.5% per month on any outstanding balance or the maximum allowed by law, whichever is lower, and you will be responsible for all collection expenses, including reasonable attorney fees. In addition, Smile may terminate the Service or this TOS if any payment is not made within ten (10) days after it is due.
6 Representations and Warranties
6.1 Your representations and warranties. You represent and warrant to Smile that:
(a) You own all Your Data or have any and all necessary permissions, rights, releases or licenses needed to conduct your activities, including those activities necessary for Smile to perform the Services and Smile’s exercise of the rights and license you have granted us;
(b) Your Data and related activities, and Smile’s performing the Services using Your Data, do not and will not violate, misappropriate or infringe upon the rights of others, including intellectual property rights and the rights of privacy or publicity;
6.2 Mutual Warranties. Each of you and Smile represents and warrants: (a) it has the legal power to enter into this TOS and if you are an Organization or other business entity, to bind such entity, its users and owners; (b) it will not transmit to the other any malicious code or software viruses (except for such items previously transmitted by the other party to the warranting party).
6.3 Smile’s Limited Warranty
Subject to the exclusions in Section 6.4, Smile warrants that the Service will perform substantially in accordance with its published specifications. For any breach by Smile of this warranty, your sole and exclusive remedies are those stated in Sections 8.3 (termination and payment/ refund), as limited by Section 7.
Smile cannot make further warranties since it is unable to obtain same from its vendors and third party service providers used in rendering the Service.
6.4 Exclusions From Smile Warranty
The following are hereby excluded from our warranty in Section 6.3 above: (a) any failure of substantial performance caused by or resulting from Your Data, your devices, software code or software or services supplied to the Service by you; (b) any failure of substantial performance due to viruses or malicious code in Your Data or in any software or services supplied on your behalf by third party vendors; (d) any failure to perform relating to your use of Smile’s API under Section 3.6; or (e) any power/ infrastructure failures or interruption of service or other cause beyond Smile’s reasonable control.
6.5 Smile Disclaimer of Warranties
(a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, SMILE MAKES NO WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(b) SMILE DISCLAIMS ALL LIABILITY FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD PARTY HOSTING PROVIDERS OR YOUR USE OF OUR API. SMILE MAKES NO WARRANTIES THAT THE SERVICE WILL BE UNINTERRUPTED, SECURE, TIMELY, OR FREE FROM ERRORS NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED REGARDING USE OF THE SERVICE. WE PROVIDE THE SERVICE AND ALL RELATED COMPONENTS TO YOU ON A “AS IS” AND “AS AVAILABLE” BASIS.
(c) The Service may be temporarily unavailable for scheduled or unscheduled maintenance, or for causes beyond our reasonable control. Smile will use reasonable efforts to provide advance notice of any material scheduled service disruptions. You acknowledge that Your Data may be transmitted or handled unencrypted if you use unencrypted means to access the Service. While Smile takes steps to ensure information provided to and/or processed by our third party vendors or hosting companies is sent using commercially reasonable security measures, we do not guarantee that all these transmissions will be encrypted. You agree that you bear sole responsibility for adequate security, protection, and backup of Your Data. Smile will have no liability to you for any access or use of Your Data, or for any deletion, corruption, destruction or loss of Your Data.
7 Limitation of Smile’s Liability
7.1 Limitation of Liability. IN NO EVENT SHALL SMILE’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS TOS EXCEED THE AMOUNT PAID BY YOU IN THE 6 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL SMILE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU IN THE 12 MONTHS PRECEDING THE INCIDENT OR INCIDENTS GIVING RISE TO THE CLAIM. THE ABOVE LIMITATIONS SHALL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5.
IF NO FEES WERE PAID BY YOU FOR THE SERVICE, SMILE’S LIABILITY WILL NOT EXCEED THE SUM OF $200.
IT IS UNDERSTOOD AND AGREED THAT THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THEY HAVE RELIED UPON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
Some jurisdictions do not allow exclusion of implied warranties or limitation of liability for such things as incidental or consequential damages, and therefore some of the above limitations may not apply to you. However, IN THESE JURISDICTIONS, SMILE’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Your sole and exclusive remedy against Smile under this TOS is as stated in Sections 7.1, 7.2, and 8.
7.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL SMILE HAVE ANY LIABILITY TO YOU FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT, TORT OR OTHERWISE AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
8 Term and Termination
8.1 This TOS remains in effect until your account or this TOS is terminated. Monthly service plans renew automatically for additional months. Annual service plans renew automatically for additional years. You may terminate your TOS or your account at any time for any or no reason, with or without notice, using the account cancellation interface provided in your account settings. Only the Organization Administrator has the ability to deactivate and delete accounts of Team Administrators, Teams, and Organization User accounts.
8.2 Smile may, at any time, and for any or no reason, at its sole discretion, (a) suspend your rights to use the Service, including deactivating your account and all accounts you administer or (b) terminate this TOS including, but not limited to, termination of the Service for your violation of this TOS.
Surviving Terms. Any and all accrued rights to payment and the terms of Section 1 and Sections 3-7, 8.3, 9-14 shall survive any termination of this TOS.
9. Indemnification. You will defend us against any claim, demand, suit or proceeding made or brought against us by a third party: (a) alleging that Your Data, or your use of the Service or content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law including but not limited to privacy rights; or (b) which arises from or is related to your use of our API pursuant to Section 3.6 or breach of any representation or warranty you have made to us in this TOS (collectively, a “Claim Against Us”). You shall also indemnify us from any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by us under a court-approved settlement of, a Claim Against Us, provided that we (i) promptly give you written notice of the Claim Against Us; (ii) give you sole control of the defense and settlement of the Claim Against Us (except that you may not settle any Claim Against Us unless it unconditionally releases us of all liability), and (iii) give you all reasonable assistance, at your expense.
10. Dispute Resolution/ Arbitration
10.1 YOU MUST READ THIS SECTION CAREFULLY AS IT MAY SUBSTANTIALLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE YOUR LAWSUIT IN COURT AND HAVE A JURY HEAR YOUR CLAIMS. To expedite and control the cost of disputes, you and we agree that any claim (legal or equitable) arising out of or relating in any way to your use of the Service and the TOS, and validity, enforceability, scope or application of the TOS, including this Section 10 (a “Claim”) will be resolved as follows:
a.Informal Resolution. Except as stated herein, no formal proceeding may begin by either of us until 30 days after one of the parties notifies the other of a Claim in writing. Notice of the Claim must include the name, address, and contact info of the claimant, the email address they use for the Service, as well as the facts surrounding the dispute and the relief requested. Notice must be emailed to email@example.com AND sent via paper mail to:
SmileOnMyMac, LLC dba Smile; 350 Bay St., Suite 100, PMB 278; San Francisco, CA 94133.
b.Formal Resolution. Except as provided in this Section 10, if we cannot resolve a Claim informally, we agree that any such Claim will be resolved only by binding arbitration and not in courts of general jurisdiction. The arbitration will be conducted before a single arbitrator pursuant to the Commercial Rules of the American Arbitration Association (“AAA”). Either of us has the authority to challenge the arbitrator’s award if and only if the arbitrator has committed errors of law. Absent such errors, the arbitrator’s decision is final and binding on all parties and may be enforced in any court of competent jurisdiction. Neither you nor we shall have the right to join, consolidate claims in arbitration by or against other legal entities or individuals, or arbitrate any claim as a representative member of a class action or in a private attorney general capacity. You and we agree that class action procedures shall not apply to the arbitration, regardless of whether such procedures are otherwise authorized by the AAA. A court can sever any portion of this Section 10 that it finds to be unenforceable, except the above prohibitions on class, representative and private attorney general arbitration.
We agree that the Arbitrator shall award costs, filing fees and reasonable attorneys fees to the prevailing party. The arbitration will initiated by a demand for arbitration in accordance with the Commercial Rules of the AAA.
ARBITRATION MEANS THAT YOU WAIVE YOUR RIGHT TO A JURY TRIAL. IN ARBITRATION, EITHER YOU OR WE MAY SEEK ANY AND ALL REMEDIES OTHERWISE AVAILABLE PURSUANT TO APPLICABLE LAW AND THIS TOS.
10.2 Individual Users. If you initiate arbitration on your own personal behalf, as an individual user, we agree to reimburse your arbitration initiation fee and any additional deposit required by the AAA to initiate your arbitration. In addition, we agree to pay costs of the arbitration proceeding. Attorneys fees and expenses of travel to the arbitration will be assessed and paid in accordance with AAA rules and the arbitrator’s award. Unless you and we both agree on another location or to arbitrate by telephone, the arbitration will be held at a location in your home town area.
10.3 Legal Entities/ Organization. If you initiate arbitration on behalf of a legal entity, you will be responsible for paying the arbitration initiation fee plus any additional deposits required to initiate your arbitration. You agree to pay the costs of the arbitration proceeding. Attorneys fees and expenses of travel to the arbitration will be assessed and paid in accordance with AAA rules and the arbitrator’s decision. The arbitration will be held in your hometown area unless you have an office in the State of Oregon, in which case it will be held in Portland, OR, or any other location we agree upon in writing. We may also agree in writing to arbitrate by telephone.
Regardless of whether you are an individual or a legal entity, to initiate an arbitration you or we must do the following things:
(1) Compose a Demand for Arbitration including a description of the Claim and total damages sought to be recovered, which demand can be obtained from www.adr.org;
(2) Send the Demand to AAA at www.adr.org or by filing with any AAA office;
(3) Send one copy of the Demand letter to us at the main address stated above, together with any supporting documents.
10.4 Exceptions to Arbitration. Notwithstanding the foregoing, the provisions for arbitration, notice and a 30 day negotiation period shall not apply to any claims, disputes or controversies concerning intellectual property rights (including trade secrets, copyrights, trademarks, moral rights and patents) and any claims of piracy or unauthorized use of the Service, including disputes relating to alleged violations of the Digital Millennium Copyright Act, 17 U.S. C. § 1201, the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510- 2521, the Communications Act of 1934, 47 U.S.C. § 105, or any other statute or law governing the theft of service, which may only be decided by a court of competent jurisdiction. You and we both submit to jurisdiction in Multnomah County Circuit Court or U.S. District Court for the District of Oregon.
You have the right to assert an individual action in small claims court, rather than an arbitration.
10.6 Modification. If Smile makes any changes to this section, it will provide 30 days notice on the Site. Modifications will become effective on the 30th day and will only apply prospectively, that is, to any claims arising after the 30th day.
11 Statute of Limitations. Notwithstanding any statute or rule of law to the contrary, or any provision of the dispute resolution process stated in Section 11, you must file with Smile an informal complaint relating to any Claim concerning, arising out of or related to your use of the Service or under the TOS within one (1) year after such claim arose or it will be forever barred. For all claims identified in Section 10.4, such claims must be filed with appropriate court of general jurisdiction within three (3) years after such Claim arose or it will be forever barred.
12 Procedure for Making Claims of Copyright or Intellectual Property Infringement
If you believe your work has been copied in a manner which constitutes copyright infringement or that your intellectual property rights have been violated, please send Smile’s Copyright Agent the following details:
a.an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or oth er intellectual property interest;
b.state or describe the copyrighted work or other intellectual property that you claim has been infringed;
c.describe the specific location on the Site where the material that you claim to be infringing can be found;
d.your address, telephone number, and email address;
e.a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
f.a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Smile’s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
SmileOnMyMac, LLC dba Smile
350 Bay St., Suite 100, PMB 278
San Francisco, CA 94133
By email: firstname.lastname@example.org
Should any provision of this TOS be found to be unenforceable or invalid, such provision will be limited or eliminated to the minimum extent necessary such that this TOS will otherwise remain in full force and enforceable.
14. GENERAL PROVISIONS
14.1 Entire Agreement. This TOS and documents incorporated by reference herein constitute the entire agreement between you and us regarding your use of the Service and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.
14.2 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent; provided, however, either party may assign this TOS in its entirety without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, providing the other party receives thirty (30) days advance notice of such transaction. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this TOS upon written notice. In the event of such a termination, we will refund to you any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this TOS will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.3 Relationship of the Parties. The parties are independent contractors. This TOS does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.4 Third-Party Beneficiaries. There are no third-party beneficiaries to this TOS.
14.5 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
14.6 Notice. Except as otherwise stated in this TOS, all notices under this TOS will be in writing and will be deemed to be given: (a) when received, if personally delivered; (b) the date receipt is electronically confirmed, if transmitted by facsimile or email; (c) the date after it is sent, if sent via recognized overnight delivery service for next-day delivery; and (d) upon receipt, if sent by certified or registered mail, return receipt requested.
14.7 Choice of Law. This TOS and the relationship between the parties shall be governed by the laws of the State of Oregon, without regard to its conflict of law principles.
14.8 Right of Survivorship. If you are an Individual User, you agree that your account is nontransferable and your rights to the content within your account shall terminate upon your death or shall be thereafter available for the sole purpose of exporting Your Data by your legal representative pursuant to Section 8.3.
14.9 Non-Government Users. Nothing in this TOS makes Smile a government contractor.
14.10 Attorneys Fees. If any arbitration, suit or action is instituted to interpret or enforce the provisions of this TOS, or otherwise with respect to this subject matter of this TOS, the party prevailing on an issue will be entitled to recover with respect to such issue, in addition to cost, reasonable attorneys fees incurred in the preparation, prosecution, or defense of such arbitration, suit or action as determined by the arbitrator or trial court, and if any appeal is taken, from such decisions, reasonable attorneys fees as determined on appeal.