Smilebox Terms of Use

Last updated on November 8th 2017

BY USING ANY SERVICE OR SOFTWARE PROVIDED BY SMILBOX, INC. AND ITS SUPPLIERS AND LICENSORS (COLLECTIVELY “SMILEBOX”) (INCLUDING, WITHOUT LIMITATION, THE FREE DESKTOP VERSION OF SMILEBOX , CLUB SMILEBOX (THE PAID PREMIUM DESKTOP VERSION OF SMILEBOX, HEREINAFTER “CLUB SMILEBOX”) OR THE FREE OR PAID PREMIUM ONLINE WEB-BASED VERSIONS OF SMILEBOX) (COLLECTIVELY, THE “SERVICES”) YOU AGREE TO BE BOUND BY THESE TERMS OF USE (THE “TERMS”) AND THE SOFTWARE LICENSE AGREEMENT YOU MAY ENTER INTO WITH SMILEBOX IF YOU DOWNLOAD SMILEBOX SOFTWARE (THE “EULA”, TOGETHER WITH THE TERMS, THE “AGREEMENT”). THE AGREEMENT APPLIES TO YOUR USE OF THE SERVICES AND ANY SOFTWARE PROVIDED BY SMILEBOX TO YOU. IF YOU CHOOSE TO SUBSCRIBE TO OR PAY FOR A PAID PREMIUM VERSION OF SMILEBOX (THE PREMIUM SB SERVICES (AS DEFINED BELOW) OR THE PAID PREMIUM ONLINE VERSION OF SMILEBOX), YOU AGREE TO BE BOUND BY THE AGREEMENT AND THE PREMIUM VERSION TERMS FOR PRODUCT SUBSCRIPTIONS SET FORTH BELOW. ALL CAPITALIZED TERMS USED BUT NOT DEFINED IN THIS AGREEMENT (INCLUDING THE PREMIUM VERSION TERMS) SHALL HAVE THE MEANING ASCRIBED TO SUCH TERM IN THE EULA:

1. General Terms of Use

USER CONDUCT

Smilebox may monitor or review your conduct on any of the Services offered by Smilebox.

In using the Service you agree not to:

Use it for illegal purposes;
Use it in connection with chain letters, junk mail, surveys, contests, pyramid schemes, or use any distribution lists including any person who has not given specific permission to be included in such a process (commercial or otherwise);
Collect or disseminate information about other users, including e-mail addresses, without their consent, or otherwise invade another's privacy or violate rights of publicity or intellectual property rights (including but not limited to copyright, trademark and patent rights);
Use it in a manner, or transmit material through it, that is unlawful, harassing, defamatory, abusive, threatening, harmful, vulgar, obscene, sexually explicit, or otherwise objectionable material of any kind or nature;
Copy, modify, distribute, transmit, publicly display, publicly perform or create derivative works or use any portion of the Services provided or made available by Smilebox or third parties or output from the Services other than as expressly provided by herein;
Transmit or upload any material that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;
Engage in any other conduct which, in Smilebox's sole discretion, is considered inappropriate, unauthorized or objectionable;
Circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any part of the Services;
Frame, hyper-link, or otherwise interfere with or in any manner disrupt, circumvent, overburden or compromise any part of the Services;
Disrupt servers or networks connected to the Services or interfere with the access, use or enjoyment of this Services by others, including, but not limited to, causing greater demand on the Services than is deemed reasonable by Smilebox;
Use any method to intercept or expropriate any system data or information from the Services;
Use any robot, spider, other automatic device, or manual process to crawl, index, or copy the Services or the content contained herein;
Decompile, disassemble, reverse engineer or otherwise attempt to discover any source code or underlying ideas or algorithms of the Services;
Attempt to gain unauthorized access to the Services, user accounts, computer systems or networks;
Link, upload, post, email, transmit or otherwise make available any content that (a) you do not have a right to make available under any law, or under any contractual or fiduciary relationships, (b) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
Collect or harvest any personally identifiable information, including account names or e-mail addresses, from the Services;
Use the communication systems provided by the Services for any commercial solicitation purposes, or link, upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation in connection with the Service;
Interfere with, damage, disable, overburden, impair, destroy, limit the functionality of or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies of networks connected to the Services;
Violate any applicable local, state, national or international law, rule or regulation, or harm Smilebox or any other person or entity;
Allow or facilitate any third party to do any of the foregoing.

You agree that you shall only use the Services in a manner that complies with all applicable laws in the jurisdictions in which you use the Services, including, but not limited to, applicable restrictions concerning privacy, copyright and other intellectual property rights. Except as specifically authorized herein, you may not: (i) permit other individuals to use the Services; (ii) modify, translate, distribute or create derivative works of the Services; (iii) rent, lease, transfer, or otherwise transfer rights to the Services; and (iv) remove any proprietary notices or labels on the Services. You may only use the Services for your private, non-commercial use. You may not use the Services in any way to provide, or as part of, any commercial service or application.

You may not attempt to, in conjunction with, any device, software program or service, circumvent technological measures employed to control access to, or the rights in, the Services. The Services embody a copy management system required by the laws of the United States, and you may not circumvent or attempt to circumvent this system by any means.

You understand and agree that you may be exposed to content posted by other users that may be offensive, indecent or objectionable. Under no circumstances will Smilebox be liable in any way for any content posted by you or any other user or third party. Smilebox does not control the content posted by users via the Services and, as such, does not guarantee the accuracy, integrity or quality of such content.

Without derogating from our Copyright Infringement Notification Procedures below, we may remove any content that you transmit to us, or terminate your account or subscription, if we are requested to do so by a copyright holder, or if your use of our software, the service, or that content violates this terms of use or is otherwise, deemed to be, in our reasonable discretion, inconsistent with the legitimate purposes and uses of the service.

YOU REPRESENT, WARRANT AND AGREE THAT YOU WILL NOT TRANSMIT ANY MUSIC, MOVIES, IMAGES OR OTHER CONTENT OVER OUR SERVICE UNLESS YOU HAVE THE NECESSARY RIGHTS, INCLUDING ANY COPYRIGHT RIGHTS, TO DO SO.

For information on how to file a copyright infringement notification with us, click here

In addition to any other remedies available in equity or law to Smilebox and Smilebox content suppliers, failure to comply with any of the terms and conditions in the Agreement shall immediately terminate your license to the Software and the Services.

2. Opening an Account, Registration and Payment for Premium Services

SMILEBOX ACCOUNT REGISTRATION

If you choose to open an account with Smilebox you must provide truthful and accurate information in creating your Smilebox account. Smilebox reserves the right to limit the number of accounts a user can establish through the Services. This limit may change over time at Smilebox's discretion. Smilebox requires all users to be over the age of 18. Smilebox and you both have the right to terminate or cancel your account or a particular subscription at any time. Smilebox has no obligation to provide a refund in the event that your account or a particular subscription is terminated or canceled.

Some of the information we collect from you may be personally identifiable information. We will comply with, and you hereby agree to, our Privacy Policy at https://desktopapp.smilebox.com/privacy-policy.html (the “Privacy Policy”), which is incorporated herein by reference, at all times with respect to this information. You are solely responsible for all activity on your account and you may not reveal your password to other users.

SOME SERVICES ARE FOR A FEE

We do offer some "premium" content and service features, and subscriptions for a fee. We will inform you if you are required to pay a fee for the service or feature you are interested in and if you proceed you will be obligated to pay the fees presented to you. PLEASE KEEP IN MIND THAT ANY FEES YOU PAY ARE PAYABLE IN ADVANCE AND ARE NOT REFUNDABLE UNLESS IN EXCEPTIONAL CIRCUMSTANCES (as shall be determined by Smilebox at its sole discretion). If you would like to obtain a refund, please contact us at support@smilebox.com. As the account holder, you are responsible for all charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your account.

PLEASE ALSO NOTE THAT THE VARIOUS SMILEBOX PRODUCTS HAVE SEPARATE PAYMENT OBLIGATIONS. FOR EXAMPLE, A SUBSCRIPTION TO CLUB SMILEBOX (THE PAID PREMIUM VERSION OF SMILEBOX FOR DESKTOP) WILL NOT GRANT YOU ACCESS TO OR ENTITLE YOU USE OF THE PAID PREMIUM ONLINE WEB-BASED VERSION OF SMILEBOX WHICH WILL NEED TO BE PAID FOR SEPARATELY.

Smilebox reserves the right to change our fees or billing methods at any time and will provide notice of any such change at least thirty (30) days in advance. All changes will be posted on Smilebox and you are responsible for reviewing the billing section of Smilebox to obtain timely notice of such changes. Your continued use of the Service thirty (30) days after posting of the changes on Smilebox means that you accept such changes. If any change is unacceptable to you, you may cancel your subscription at any time, but Smilebox will not generally refund any fees (other than in its sole discretion). If your use of the services is subject to use or sales tax, then Smilebox may also charge you for any such taxes.

PAYMENT OPTIONS

We only accept payment via credit or debit card. When you provide credit or debit card information to Smilebox you represent that you are the authorized user of the card. Each month that you have a Smilebox account, you agree and reaffirm that Smilebox is authorized to charge your credit or debit card for the subscription fee. You agree to promptly notify Smilebox of any changes to your credit or debit card account number, its expiration date and/or your billing address, and you agree to promptly notify Smilebox if your credit or debit card expires or is canceled for any reason.

FREE TRIALS

We may, from time to time, offer free trials. Please be aware that if you accept a free trial we will begin to bill your account for that feature or subscription when the free trial expires, unless you cancel it before that time; or if you agree to terms of any other promotion associated with it.

Free trials cannot be combined with any other offer. If you have accepted a Club Smilebox free trial, you are not eligible to receive an additional free trial.

3. Legal Protections

DISCLAIMER OF WARRANTIES

THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SMILEBOX EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. SMILEBOX MAKES NO WARRANTY THAT ITS SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT ITS SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. YOU ACKNOWLEDGE THAT SMILEBOX DOES NOT CONTROL CONTENT, PRODUCTS OR SERVICES OFFERED BY ADVERTISERS, THIRD PARTIES OR OTHER USERS ON OR THROUGH THE SERVICE.

LIMITATION OF LIABILITY

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL SMILEBOX BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF SMILEBOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Smilebox's total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed amounts paid to it by you over the prior 12 months. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

INDEMNIFICATION

You agree to indemnify and hold Smilebox harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Services, the violation of the Agreement by you, the infringement by you (or other user of the Service using your account) of any intellectual property or other right of any person or entity or violation of any federal, state or local law or regulation.

4. Term

The term of the Agreement will commence upon your use of the Service and will survive even after you have stopped using the Service.

5. Personal Information and Privacy

Personal information you provide to Smilebox is governed by the Smilebox Privacy Policy at https://desktopapp.smilebox.com/privacy-policy.html. Your election to use the Software and Services indicates your acceptance of the terms of the Smilebox Privacy Policy, so please review it carefully. If you have questions about our Privacy Policy, please visit Smilebox Customer Support at https://support.smilebox.com.

6. E-mail Notification

To let you know what new content, services, products and other offers, including commercial offers, may be available from time to time, Smilebox will send you e-mail communications describing such content, services, products and offers, and how to get access to them. You agree that as a subscriber to the Services, Smilebox may send you such e-mails to the address you provided. We may also send you emails which confirm and record certain activities and transactions that you have completed through the Services. Because these transactional e-mails are necessary for you to receive the Services, you will receive them even if you have opted out of receiving other e-mail from Smilebox; if you do not want to receive any e-mails from Smilebox, you may cancel the Services at any time as provided in the Agreement. Any communication from you to Smilebox through email, must be done through the email address Smilebox has on file.

7. Miscellaneous

The Agreement shall be governed by and construed in accordance with the laws of the state of Washington. You agree to submit to the exclusive jurisdiction of the courts of the State of Washington, provided, however, that Smilebox, in its sole discretion, may elect to settle any litigation in any way arising out of or relating to your use of the Service through binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such arbitration shall be conducted in Seattle, Washington, and judgment on the arbitration award may be entered into in any court having jurisdiction thereof. If any provision(s) of the Agreement is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Smilebox's failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Smilebox in writing. You and Smilebox agree that any lawsuit arising out of or related to the Service must commence within one (1) year after the cause of action arises; otherwise, such cause of action is permanently barred.

8. Modifications to the Service or Agreement

Unless otherwise provided, Smilebox may change the Agreement at any time in its sole discretion. In the event of any material or substantial change to this Agreement, Smilebox may notify you via e-mail, and/or by posting an announcement of the changes on the Service. By using the Service after any change you acknowledge and accept the changes. When we change this Agreement, we will update the Last Updated date at the beginning of this Agreement.

* Please note that a previous version of this Agreement can be found at https://desktopapp.smilebox.com/terms-of-use2016.html

9. COPYRIGHT INFRINGEMENT NOTIFICATION

To file a copyright infringement notification with us, you will need to send a written communication that includes substantially the following (please consult your legal counsel or see Section 512(c)(3) of the Copyright Act to confirm these requirements):

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. Providing URLs in the body of an email is the best way to help us locate content quickly.
Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Such written notice should be sent to our designated agent as follows:

DMCA Complaints
Smilebox, Inc.
C/O Perion Network Ltd.
Attention: General Counsel
Azrieli Center 1, Building A, 4th Floor
26 HaRokmim St.
Holon, 5885849
Israel

Fax: +972 036031585
Email: legal@perion.com

Please also note that under Section 512(f) any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

Terms for Product Subscriptions

These Terms of Sale for paid version of Smilebox (including, without limitation, Club Smilebox or the paid premium online web-based version of Smilebox) (the "Premium Version Terms") are a legal agreement between you (either an individual or an entity) and Smilebox for access to and use of the paid premium versions of Smilebox (the "Premium SB Services"). For the avoidance of doubt, any restriction, obligation or liability applicable to you in connection with the Agreement and your use of the Services shall also apply, mutatis mutandis, to your use the Premium SB Services. The Premium SB Services include access to content as described below. You may only receive the specific Premium SB Services if you are a subscriber to such specific services and in good standing with a valid, authorized Payment Method (as defined below under Section 1) on file with Smilebox, or if you are in a trial period of the Premium SB Services. If you do not agree to the Premium Version Terms, do not purchase or use any Premium SB Services.

YOU AGREE THAT BY USING THE PREMIUM SB SERVICES YOU ACKNOWLEDGE THAT YOU HAVE READ THE AGREEMENT, THE PREMIUM VERSION TERMS AND THE SMILEBOX PRIVACY POLICY, UNDERSTAND THEM, AND AGREE TO BE BOUND BY THEIR RESPECTIVE TERMS AND CONDITIONS. THE PREMIUM SB SERVICES MAY BE PROVIDED TO YOU ON DIFFERENT LEVELS SUCH AS FREE, TRIAL OR SUBSCRIPTION BASIS AT THE SOLE DISCRETION OF SMILEBOX.

1. Payment & Premium SB Services

BILLING AUTHORIZATIONS FOR FREE TRIAL MEMBERSHIPS

As part of a free trial offer, you agree that Smilebox may obtain a pre-authorization for the subscription fee amount to verify the validity of your Payment Method.

INITIAL SUBSCRIPTION PAYMENT AND AUTOMATIC SUBSCRIPTION RENEWAL

You agree to pay Smilebox the applicable service charges applicable to your subscription (e.g. monthly or annually) for your use of the applicable Premium SB Services you pay for using a valid Payment Method, plus any applicable taxes, in accordance with the billing terms and prices applicable to your subscription. You authorize Smilebox to automatically bill the Payment Method you provide starting on each applicable subscription period renewal date (and to continue to attempt to bill you until you have been billed successfully if the initial attempt was not successful) until you cancel the applicable Premium SB Services. You further acknowledge that Smilebox shall use third parties to charge you and process the payment for the applicable Premium SB Services’ charges applicable to your subscription. You agree that we may share your payment information with these third parties who may use this information in accordance with our Privacy Policy and their privacy policies which shall be prompted to you prior to you using their services, as applicable. Your election to use the Premium SB Services indicates your acceptance of the Agreement, these Premium Version Terms and the terms of the Smilebox Privacy Policy and any policies of third parties provided to you, so please review them carefully. Payments are billed in advance at the beginning of the applicable subscription period.

Smilebox reserves the right to offer different prices, promotions and/or discounts to different users from time to time, at its sole discretion.

REFUND POLICY

All payments are non-refundable unless in exceptional circumstances (which shall be determined by Smilebox at its sole discretion) and whilst you may cancel the applicable Premium SB Services you paid for at any time, Smilebox will not refund any remaining portion of your subscription fees, including any minimum commitments, already billed to your account, unless otherwise specified in writing by Smilebox, such as in a specific subscription offer subject to the applicable subscription refund terms which shall be at Smilebox sole discretion. You agree to provide Smilebox with a valid Payment Method and accurate, complete and updated information required by the subscription registration form. Failure to comply may result in the immediate termination of the applicable Premium SB Services.

PAYMENT METHOD

Smilebox accepts various payment methods such as credit cards, debit cards and PayPal (the “Payment Method”); Smilebox reserves the right to change any of the available Payment Methods from time to time at its sole discretion. Smilebox may obtain a pre-approval from the Payment Method for an amount up to the amount of the order. Based on your subscription terms, billing to your Payment Method may occur on any of the following instances: (i) at the beginning of your subscription term, (ii) at the expiration of a trial period, (iii) upon renewal of a subscription. If an unsuccessful attempt was made to bill you on any of the foregoing occasions, you acknowledge and authorize us to continue to attempt to bill you until you have been successfully billed. Please check with your applicable Payment Method provider regarding any policies they have concerning online purchases. If a purchase has been declined online due to Payment Method issues, please check with your Payment Method provider.

Smilebox will assess an additional 1.5% (or the highest amount allowed by law, whichever is lower) per month if your payment is more than 30 days past due. This amount is also due immediately. You are responsible and liable for any fees, including attorney and collection fees, that Smilebox may incur in its efforts to collect any remaining balances from you. You also agree that you will be billed for and will pay any outstanding balances if you cancel the Premium SB Services, or if the Premium SB Services are terminated. You agree to notify Smilebox about any billing problems or discrepancies within 30 days after they first appear on your account statement. If you do not bring them to Smilebox attention within 30 days, you agree that you waive your right to dispute such problems or discrepancies.

2. Your Right to Cancel Premium SB Services

You may cancel the Premium SB Services at any time. You will not receive any refund or partial refund for any charges already billed to your account, unless otherwise specified by Smilebox in writing or in a subscription offer. In the event you signed up for a minimum commitment period, you will be responsible for all charges for the entire minimum commitment period. You may cancel the Premium SB Services by visiting Smilebox Customer Support at https://support.smilebox.com and provide to Smilebox: (1) your request to cancel your Club Smilebox membership; (2) your Smilebox account email address; (3) your reason for canceling; we may ask you to provide us with certain additional relevant information for security and verification purposes. You understand and agree that cancellation of your subscription is your sole right and remedy with respect to any dispute with Smilebox. This includes, but is not limited to, any dispute related to, or arising out of: (1) any term of this Agreement, the Premium Version Terms, the Privacy Policy or Smilebox’s enforcement or application of such agreements and policies; (2) the content available through the Premium SB Services or the Internet or any change in the content provided through the Premium SB Services; (4) your ability to access and/or use the content; (5) your recipient's ability to access and/or view content you send to them; (6) any Software or content provided by or through the Software; or (7) the amount or type of fees, applicable taxes, billing methods, or any change to the fees, applicable taxes, or billing methods. You understand that upon cancellation of the Services, any premium content that you downloaded during the term of your subscription will revert to basic content; however, based on the content type, certain premium content may remain available after such cancellation. Any content is bound by the terms under which it was provided.

To the extent you were offered with a trial, you must cancel your subscription before the expiration of the trial period in order to avoid charges for your subscription. Please allow up to 2 business days after requesting cancellation to receive a confirmation.

3. Smilebox Right to Terminate or Modify Services

Smilebox may modify the Premium Version Terms or the Premium SB Services, including but not limited to the price, various subscriptions’ terms, content or nature of the Premium SB Services, upon notice to you. Smilebox may terminate the Premium Version Terms and the Premium SB Services at any time upon notice to you, provided that you will be entitled to receive the Premium SB Services for any period for which you have already paid, or a pro-rata refund at Smilebox sole discretion. Smilebox may provide notice by e-mail or by publishing the changes on its website. The Premium Version Terms and the Agreement will automatically terminate if you fail to comply with any terms and conditions hereof and no notice shall be required from Smilebox to effect such termination. Upon any termination of the Premium Version Terms and the Agreement (whether by you or Smilebox), you shall immediately discontinue use of the Services, including, the Premium SB Services. Your obligation to pay accrued charges and fees shall survive any termination of the Premium Version Terms and the Agreement, for any reason.