TextExpander.com Terms of Service
Effective November 3, 2017 for new users. Effective December 3, 2017 for existing users.
You can see past versions of our Terms of Service in our Policy Archive.
1 Terms and Acceptance
This Terms of Service agreement, (“TOS” or “Agreement”) 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 on behalf of a business entity (“Organization”) for use by a team or teams composed of various individuals (“Team” or “Teams”) and who can create, edit, suspend, set access controls for, and remove Organization Administrators, Team Administrators, Teams, and users within your Organization; (2) those who can add and remove Organization Users within their Team (“Team Administrator”); (3) Organization 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. All users who are part of a Team are referred to as “Team Members”.
The terms “you” and “users” and “your” encompass all users, whether Individual, Organization, or Administrative Users and the Organization itself. This is an agreement between you, the Organization, 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.
Three different types of Organizations may use the Service. If you are an Organization User, your rights will vary depending on the type of Organization to which you belong.
- Type 1 or Open Organization
- Type 2 or Shared Organization
- Type 3 or Closed Organization
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 a minimum of 14 days’ prior notice via email or by posting a notice on the Service stating the effective date of the change. Should you continue to use the Service, purchase subscription(s), create or modify any Teams, including inviting new users to that Team after receiving the notice provided for in this Section, you thereby agree to the change in this TOS and 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.
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 or any portion of our source code to the Software. Subject to Section 3.6, we may choose to provide source code, but not object code, for our API.
Snippet groups are controlled either by an Individual User, Organization User, or an Organization through its Administrative Users. 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. Depending on the type of Organization and its policies, an Organization User may have the option to set control of any Snippet group they create, either to such user or to the Organization to which he or she belongs.
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(b) Should we believe there has been a violation of this Agreement that can be remedied by removal of Your Data, or a portion thereof, we will, in most cases, ask the Administrative User or the Individual User, as applicable, to take action rather than our intervening. We may intervene and take such actions as we determine to be appropriate if you fail to do so, or if we believe there is a credible risk of harm to the Service, Smile, its Users, or any third parties.
3.1 (c) If an Organization User is removed from their Organization and is not a member of any additional Organizations, that user becomes an Individual User. Once removed from a Type 2 or Type 3 Organization, the Individual User loses access to Snippets and Snippet groups controlled by the Organization. Once removed from a Type 1 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.
3.2 Prohibited Information
The Site and Service are not intended for the storage or receipt of: (1) any sensitive Personally Identifiable Information or other data, such as social security numbers or bank account numbers. the loss of which would trigger a data breach notification requirement; or (2) health information, including without limitation, Protected Health Information, as defined under the Health Information Portability and Accountability Act of 1996 (“HIPAA”), as amended, (“collectively the ”Prohibited Information“) For this reason, Smile prohibits all Organizations and all Individual Users, Organization Users and Administrative Users from placing or storing any Prohibited Information in the Site or the Service. You will defend, indemnify, and hold Smile harmless from and against all costs and expenses (including, without limitation, litigation costs, fees, and settlement sums) arising from any claims, including third party claims, that Smile may incur relating to your making any of the Prohibited Information available to the Site and/or the Service.”
3.3 Government Organizations
The Service may not meet the needs of U.S., State or local government organizations and users. If it does not, then such governmental entities and users should not use the Service.
(a) U.S. Government Restricted Rights
The Service and related documentation provided is a “commercial item” as defined in 48 C.F.R. 227.7201 (1995) consisting of “commercial computer services and commercial computer services documentation as those terms are used in 48 C.F.R. 227.7202–1–4 (1995). All U.S. Government agencies and all their respective Organization Users or Administrative Users acquire the Service and related documentation limited to those rights set forth in this Agreement.
(b) State and Local Governments. The rights of all state and local government agencies, organizations, and their respective users of the Service and related documentation are likewise limited to those set forth in this Agreement.
3.4 Free Trial Period
3.5 The Following Special Provisions Shall Apply to the Free Trial Period:
(a) No Warranty/Nonliability
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. NOTWITHSTANDING SECTION 6.3–6.5 (LIMITED WARRANTIES AND DISCLAIMERS) DURING THE TRIAL PERIOD, 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.
3.6 This is a subscription to the Service, which we own, including the Software made available via the Service. The Software is licensed on the terms and conditions stated in the our TextExpander License Agreement (“TLA’), incorporated by reference herein, which you will need to accept. Subject to the limited rights expressly granted in the TLA and 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 TLA does not include Smile macOS, iOS, Windows, and Chrome applications. These applications will require an additional license from Smile, the terms of which you will need to accept. The TLA and such additional license can be found at https://textexpander.com/licenses
3.7 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 the following 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” and “WHERE 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 and against 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 Responsibilities of Organizations, Team Members and Individual Users.
4.1 For All Team Members, What Constitutes “Your Data” Will Vary Depending on the Organizational Type.
4.1 (a) For a Type 1 or Open Organization:
“Your Data” means any messages you send, data files, profile information, Metadata, and all content that you post or upload or make available via the Service, including Snippet content and personal profile information, such as name, hobbies, and astrological sign, (“Personal Profile”). You retain all right, title, and interest (including copyright and other proprietary or intellectual property rights) in Your Data. You hereby grant to Smile a limited, revocable, non-exclusive, non-transferrable, worldwide right and license during the term of this Agreement, to use Your Data only as necessary to perform the Service, e.g., to transmit, store, display, copy, index for searching and make back-ups of Your Data to prevent data loss.
4.1 (b) For a Type 2 or Shared Organization:
“Your Data” means any messages you send, data files, Metadata, Personal Profile information, and all content that you post or upload or make available via the Service, including Snippet content. Subject to the rights granted to Smile and the Organization stated in this paragraph, you retain all right, title, and interest (including copyright and other proprietary or intellectual property rights) in Your Data. You hereby grant to Smile a limited, revocable, non-exclusive, non-transferrable, worldwide right and license during the term of this Agreement, to use Your Data only as necessary to perform the Service, e.g., to transmit, store, display, copy, index for searching and make back-ups of Your Data to prevent data loss. All users in a Type 2 Organization acknowledge that by contract, they have granted their Organization a license to access and use their Metadata to create best practices for the Organization’s use of the Service.
4.1 (c) For a Type 3 or Closed Organization:
(i) For all users in a Type 3 Organization, “Your Data” is limited solely to your Personal Profile.
(ii) For a Type 3 Organization itself, “Your Data” means all messages sent, data files, Metadata, profile data proprietary to the Organization (such as work phone and building address) and all content any user posts, uploads, or makes available via the Service, including Snippet content, and all right, title, and interest therein (including copyright and other proprietary or intellectual property rights).
Except as stated in 4(c)(i), no user in a Type 3 Organization has any data rights and all messages you send, datafiles, Metadata, and all content a user posts, uploads, or makes available via the Service, including Snippet content and all right, title, and interest therein (including copyright and other proprietary or intellectual property rights) is owned entirely by the Organization. All users and the Organization hereby grant to Smile a limited, revocable, non-exclusive, non-transferable, worldwide right and license during the term of this Agreement to use Your Data (as defined in 4.1(c) (i) and (ii), respectively) only as necessary to perform the Service, e.g., to transmit, store, display, copy, index for searching, and make back-ups of same to prevent data loss. All users in a Type 3 Organization acknowledge that, by contract, they have transferred their rights and assigned their interest(s) to any data or content they post or create to the Organization
4.1(d) For an Individual User, “Your Data” means any messages you send, data files, Personal Profile information, Metadata, and all content that you post or upload or make available via the Service, including Snippet content. You retain all right, title, and interest (including copyright and other proprietary or intellectual property rights) in Your Data. You hereby grant to Smile a limited, revocable, non-exclusive, non-transferrable, worldwide right and license during the term of this Agreement, to use Your Data only as necessary to perform the Service, e.g., to transmit, store, display, copy, index for searching and make back-ups of Your Data to prevent data loss.
4.1 (e) Scope of Smile License – Third-Party Service Providers
The limited license granted Smile in 4.1(a), 4.1(b), 4.1(c), or 4.1(d) extends to third-party service providers used in the operation and administration of the Service, including Amazon Web Services.
4.2 Metadata. For purposes of this TOS, “Metadata” includes, but is not limited to: Snippet abbreviations, Snippet labels, Snippet group prefixes, Snippet group prefix overrides, Snippet abbreviation modes, group names, group notes, group expansion settings, group expansion sound settings, group expansion app exclusions, group inline search inclusions, group sharing settings, group access permissions, Personal Profile information, Organization profile information, client application preferences, device identifiers, Internet Protocol (“IP”) addresses and times of client connections and any additional data except Snippet content. As our business evolves, we may change the definition of Metadata and may post a notice to that effect on the Service.
4.3 Access to Your Data
4.3 (a) In a Type 1 Organization, Administrative Users, subject to Organization policy, may have certain rights to access Your Data.
4.3 (b) In a Type 2 Organization. Administrative Users, subject to Organization policy, may have certain rights to access Your Data and shall have the right to access and use your Metadata for the purposes stated in 4.1(b).
4.3 (c) In a Type 3 Organization, Administrative Users shall have unlimited access to Your Data, as defined in 4.1 (c)(i), and the Organization shall have all ownership rights to the data and information stated in 4.1 (c)(ii).
4.4 Exporting Your Data
(a) In a Type 1 Organization, you have the right to export Your Data subject to the terms of this TOS.
(b) In a Type 2 Organization, you have the right to export Your Data, but not your Metadata. You have no right to export Metadata which is required to be shared with your Organization under the terms of this TOS.
(c) In a Type 3 Organization, you have the right to export Your Data, as defined in 4.1(c)(i). Any right to export Your Data, as defined in 4.1(c)(ii), will be a hierarchical, permissioned capability based on access controls set by an Administrative User.
4.5 Sharing or Deleting Snippet Content
A Team Member’s right to share Snippet content or groups with others is governed by access controls set by Organization’s Administrative User granted at the Snippet group level. To the extent that this TOS allows users to create Snippet groups which they control, the user who created the content can set sharing access, subject to a Type 2 Organization’s right to access and use Metadata and a Type 3 Organization’s right to set or deny access. Snippet content can be deleted by any Team Member in a Type 1 Organization or by an Administrative User in a Type 2 or 3 Organization. No such deletion can be made by a User in a Type 1 or Type 2 Organization.
4.6 Deleting Metadata
All Users in a Type 1 Organization have the right to delete their Metadata. No User in a Type 2 or Type 3 Organization shall have the right to delete their Metadata.
4.7 Change in Organization Type
(a) Right to Change. All Organizations shall have the right to change their Type to another Organization Type upon 30 days’ written notice to Smile and, if the change is from a Type 1 to Type 2, or a Type 2 to a Type 3 Organization (either an “Escalated Change”) to all Organization and Administrative Users.
(b) Deemed Representations
Upon the giving of the notice stated above, any Organization: (a) changing from Type 1 to Type 2 shall automatically and conclusively be deemed to have made the representations to Smile stated in Section 6.2; (b) changing from a Type 2 to Type 3 shall automatically and conclusively be deemed to have made the representations to Smile stated in Section 6.3.
(c) User’s Right to Opt Out
Within 14 days after receiving the notice stated in Section 4.7 (a), any Team Member may opt out from the Service by written notice to the Administrative User and Smile.
(d) Effect of User Opt Out
When the opt out notice is timely given by a user in response to the Escalated Change notice in 4.7(a):(i) an Organization changing from Type 2 to Type 3 will not have the ownership rights stated in section 4.1(c)(ii); and (ii) an Organization changing from Type 1 to Type 2 will not have the right to access and use the Team Member’s Metadata as stated in Section 4.1(b).
(e) Failure to Opt Out. If any user fails to opt out within the time stated in Section 4.7(c), then all Your Data previously owned by the user will be retroactively owned by the Organization converting to a Type 3 Organization and all the User’s Metadata will retroactively become subject to rights of access and use for an Organization converting to a Type 2 Organization. Such ownership or rights of use, as applicable, shall be retroactive to the date of the notice given in Section 4.7(a).
We are custodians of Your Data. We will maintain or provide Your Data to you for a period of thirty days from expiration or termination of this TOS or your subscription. Thereafter, we have no obligation to either maintain or provide any of Your Data and, unless legally prohibited, or otherwise agreed in writing, may delete all Your Data from our system or otherwise in our possession or under our control.
4.9 Responsibility of Individual Users, Administrative Users, Organization Users, and all Organizations
(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 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; and (v) is Prohibited Information as defined in Section 3.2
(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; (ix) disclose in any manner, shape, or form, any of Smile’s confidential and/or proprietary software or other intellectual property.
(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. Depending upon the type of Organization in which you are a User, the Service may allow or require 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 upon not less than 14 days’ prior 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 Representations and Warranties of All users and all Organization Types
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 Representations and Warranties of Type 2 Organizations
Type 2 Organizations represent and warrant to Smile that they have contractual provisions in place with all Team Members by which they authorize the Organization’s access to and use of their Metadata as stated in Section 4.1(b) and the retroactive effect of failing to opt out as set forth in 4.7(e).
6.3 Representations and warranties of Type 3 Organizations
Type 3 Organizations represent and warrant to Smile that they have contractual provisions in place with all Team Members by which they authorize the Organization’s access to and ownership of all data and Metadata created by them, and the retroactive effect of failing to opt out as set forth in 4.7(e).
6.4 Representations and Warranties of All Organizations
Type 1, Type 2, and Type 3 Organizations represent and warrant to Smile that they: (a) have informed all Team Members of all Organization policies and practices relevant to their use of the Service and of any settings that may impact the processing of Your Data; (b) have obtained all rights, consents, and permissions from all users necessary to grant the rights and licenses in this TOS and for the lawful use and transmission of Your Data and the operation of the Service; and (c) the Organization is responsible for the conduct of all Team Members and their compliance with the terms of this Agreement.
6.5 Mutual Warranties
Each of you and Smile represents and warrants: (a) they have the legal power to enter into this TOS and, if you are an Organization, to bind such entity, its users and owners; (b) they 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).
6.6 Smile’s Limited Warranty
Subject to the exclusions in Section 6.7, 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.
6.7 Exclusions From Smile Warranty
The following are hereby excluded from our warranty in Section 6.6 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.
6.8 Smile Disclaimer of Warranties
(a) EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICE AND ALL RELATED COMPONENTS ARE PROVIDED ON A “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES 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. WE MAKE NO WARRANTIES THAT THE SERVICE WILL BE UNINTERRUPTED, SECURE, TIMELY, OR FREE FROM ERRORS NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED REGARDING USE OF THE SERVICE.
(b) SMILE DISCLAIMS ALL LIABILITY FOR ANY HARM OR DAMAGES CAUSED BY YOUR USE OF OUR API.
(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.
7 Limitation of Liability
7.1 Limitation of Our Liability. EXCEPT FOR OUR INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT IN NO EVENT SHALL SMILE’S LIABILITY FOR NEGLIGENT ACTS OR OMISSIONS 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 FOR NEGLIGENT ACTS OR OMISSIONS 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. . HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5.
7.2 Limitation of Your Liability.
EXCEPT FOR YOUR INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, IN NO EVENT SHALL YOUR LIABILITY FOR NEGLIGENT ACTS OR OMISSIONS WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS TOS EXCEED THE AMOUNT PAID BY YOU IN THE SIX MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM;, IN NO EVENT SHALL YOUR AGGREGATE LIABILITY FOR NEGLIGENT ACTS OR OMISSIONS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU IN THE TWELVE MONTHS PROCEEDING THE INCIDENT OR INCIDENTS GIVING RISE TO THE CLAIM.
THE ABOVE LIMITATIONS SHALL NOT APPLY TO ANY ACTS OF SMILE OR YOU WHICH ARE WILFULL, INTENTIONAL, RECKLESS OR GROSSLY NEGLIGENT.
NOTWITHSTANDING SECTIONS 7.1 AND 7.2, IF NO FEES WERE PAID BY YOU FOR THE SERVICE, NEITHER PARTY’S LIABILITY FOR NEGLIGENT ACTS OR OMISSIONS, WILL 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.
7.3 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 subscription or this TOS is terminated. Monthly service plans renew automatically for an additional period of one (1) month. Annual service plans renew automatically for additional periods equal to one (1) year at the then-current subscription rate. You may terminate this 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’s Right to Suspend/Terminate Service
8.2(a) Smile may, at any time, and for any or no reason, at its sole discretion suspend your rights to use the Service, including deactivating your account and all accounts you administer.
8.2(b) Smile may terminate this TOS including, but not limited to, termination of the Service upon your violation of this TOS or use of the Service in a manner which violates applicable law.
8.2 (c) Without limiting the foregoing, Smile may suspend the Service if it receives conflicting instructions from a Type 2 or Type 3 Organization and any Team Member within such Organization regarding ownership of or rights to use data or Metadata, and such suspension may continue until such time, if ever, as Smile receives consistent instructions. The failure to provide consistent instructions within thirty (30) days of Smile’s request for same shall be a basis for termination of the pertinent account(s), or this TOS and the Service.
8.4 Surviving Terms
Any and all accrued rights to payment and the terms of Section 1 and Sections 2–8, 8.3, 9–14 shall survive any termination of this TOS.
(a) By You. 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. Your sole liability with respect to and our exclusive remedy against you for, any claim against us is as expressly stated herein; 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 defend, indemnify, and hold us harmless 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.
(b) By Us. We will defend you against any claim, demand, suit or proceeding asserting or alleging that the use of the Service as permitted under this TOS misappropriates or infringes any third party’s intellectual property rights (“Claim Against You”). We will defend, indemnify, and hold you harmless from any damages, attorney’s fees and costs finally awarded against you as a result of or for any amounts paid by you under a court-approved settlement of a Claim Against You, provided that you: (i) promptly give written notice of the Claim Against You; (ii) give us sole control of the defense and settlement of the claim against you (except that we may not settle any claim against you unless it unconditionally releases you of all liability), and (iii) and give you reasonable assistance at your expense. Notwithstanding the foregoing, Smile has no obligation to indemnify, or liability in respect thereof, if a Claim Against You arises from or relates to Your Data, including Prohibited Information, and/or any modification, addition, combination, or development of the Service which is not performed by Smile including, but not limited to, the use of any application programming interface. Smile’s sole liability with respect to, and your exclusive remedy against us for any claim against you is as expressly stated herein.
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, except as otherwise stated in this Section, including Section 10.5. 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 during which 30 days the parties shall have conferred by telephone or in person, and attempted to resolve the Claim. Notice of the Claim must include the name, address, and contact information 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 firstname.lastname@example.org 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 Judicial Arbitration and Mediation Services (“JAMS”), or, if JAMS does not conduct arbitrations in Portland, Oregon, then the arbitration shall be conducted before a single arbitrator pursuant to the Arbitration rules of the Arbitration Service of Portland, Inc. (“ASP”). 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, actions, or 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 JAMS or ASP. A court can sever any portion of this Section 10 that it finds to be unenforceable, except the above prohibitions on class actions and private attorney general arbitration.
Smile and you agree that the Arbitrator shall award costs, filing fees and reasonable attorney’s fees to the prevailing party. The arbitration will be initiated by a demand for arbitration in accordance with the Commercial Rules of JAMS or Arbitration rules of the ASP.
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.
10.3 Arbitration Costs/Venue
The parties shall each pay their share of all arbitration related fees, including initiation fees, and additional deposits, if any, required by the arbitrator or the arbitration service.. Attorney’s fees and expenses of travel to the arbitration will be assessed and paid in accordance with JAMS or ASP rules and the arbitrator’s decision. The arbitration will be held in Portland, OR, and you and we submit to venue of such arbitration. We may also agree in writing to arbitrate by telephone if allowed by JAMS or ASP rules, as applicable.
The party initiating arbitration must do the following things:
(a) 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; or, if initiated through the ASP, obtain the Statement of Claim form from http://www.arbserve.com/pages/statement_claim.htm
(c) Send one copy of the Demand letter or, if ASP, the statement of Claim, to the other party at the main address stated above, together with any supporting documents.
10.5 Exceptions to Arbitration
Notwithstanding the foregoing, the provisions for arbitration shall not apply to: (a)any claims relating to privacy, which shall be handled pursuant to the E.U./U.S. Privacy Shield rules; (b) 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. For all such claims, you and we both submit to venue and jurisdiction in Multnomah County Circuit Court, Oregon or U.S. District Court for the District of Oregon, in Portland.
If Smile makes any changes to this Section, it will provide not less than 14 days’ notice on the Site. Modifications will become effective on the 30th day after posting and will only apply prospectively, that is, to any claims arising thereafter.
11 Statute of Limitations
Notwithstanding any statute or rule of law to the contrary, 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. All claims related to alleged intellectual property rights must be filed with appropriate court of general jurisdiction within three (3) years after such Claim arose or it will be forever barred.
Procedure for Making Claims of Copyright or Intellectual Property Infringement
If you believe Your Data 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 other 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:
Copyright Agent SmileOnMyMac, LLC dba Smile 350 Bay St., Suite 100, PMB 278 San Francisco, CA 94133
By email: email@example.com
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
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.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
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 internal laws of the State of Oregon, without regard to its conflict of law principles and Federal law.
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 Attorney’s 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 attorney’s fees incurred in the preparation, prosecution, or defense of such suit or action as determined by the trial court, and if any appeal is taken, from such decisions, reasonable attorney’s fees as determined on appeal.
- Second version, adopted November 3, 2017
- First version, adopted September 28, 2015