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Terms of service

Smileupps terms of service

Terms of Service

Introduction

This document contains the terms and conditions that govern your access to and use of the Service (as defined below) and is a binding agreement between Evernew ("Evernew," "we," "us," or "our") and you or the entity you represent (the "customer" or "you"). This Agreement becomes effective when you click an "I Accept" button or check box presented with these terms or when you start using any of the Smileupps Services, whichever is the earliest date (the "Effective Date"). Subject to the terms and conditions of this Agreement, during the term of this Agreement, Evernew will provide to the customer access to the Services described in the respective Service detail pages on the Smileupps website.

The customer understands and agrees that by using the on-line process and consenting to the terms of this Agreement, the customer has made a binding selection of the type of Services to be provided and all associated specifications, prices, policies and documentation related to the delivery of the Services.

Definitions

  1. Service: refers to cloud database services delivered by Evernew through the Smileupps service;
  2. Acceptable Use Policy: means the document currently available on our web site and updated from time to time describing our policy on the usage of the Services: https://www.smileupps.com/aup;
  3. Web site: means the Smileupps main web site at https://www.smileupps.com;
  4. End User: means any individual or entity that directly or indirectly accesses or uses your products, services or data, delivered on top of the infrastructure, platform and application Services provided by us;
  5. Service Level Agreement: means all service level agreements that we offer with respect to the Services, updated from time to time and available at: https://www.smileupps.com/sla;
  6. Suggestions: means all suggested improvements to the Services that you send us, through our blogs, forums, web sites, ticketing system, chat or support lines. All intellectual property associated with the "Suggestions" rests exclusively with Evernew;
  7. Policies: means those policies available at https://www.smileupps.com/legals that the customer will agree to pursuant to acceptance of the Service.

1. Service

1.1. To access the Services you must create an account associated with a valid email address. Under this account you may choose which Services you will use. You take full responsibility for all activities that occur under your account, undertaken by you, your employees or any third party contracted by you. We are not responsible for any unauthorized access to your account. You must contact us in case you believe that any unauthorized third party has used your account.

1.2. We provide support without charge through information available on our web site, such as lists of frequently asked questions, blogs and forums. We also provide a ticketing system, through which you can submit queries to our support staff.

1.3. We are not responsible for any third party content or software applications installed in relation with the Services we provide. These third party content or software applications may be made available to you by us, but may be subject to their own terms and conditions. The customer is responsible for use of the Services, including the use of any Third-Party Software utilized in connection with the Services, by any End-Users to the same extent as if the customer was using the Service itself. The customer will indemnify, defend and hold harmless Evernew, its directors, officers, employees, and affiliates (collectively, the "Indemnified Parties") from and against any and all claims, actions, demands, suits, liabilities or obligations brought against any of the Indemnified Entities by a Third-Party Software Provider for any breach or misuse of the software.

2. Changes

2.1. You agree that we may create, change, including price, features and service levels, or discontinue any of the Services from time to time. We will notify you of any changes, creation or discontinuation of any Services at any time by posting a revised version at the websites listed herein and/or of the of the Agreement at https://www.smileupps.com/legals. We will endeavour to provide you with reasonable prior notice, by email or by posting in the website or the customer control panel, about any material changes or discontinuation of Services. Unless otherwise set forth in the Agreement or in our change of terms notice, the revised terms shall be effective fifteen (15) days after posting;

2.2. It is customer's responsibility to check the websites listed herein regularly for changes to this Agreement or the Additional Policies, as applicable. If customer disagrees with any modifications to this Agreement, customer's sole and exclusive remedy shall be to terminate the receipt of Services in accordance with Section 7.

3. Security, Confidentiality and Privacy

3.1. We will implement reasonable and appropriate measures to help secure your data against accidental or unlawful loss, access or disclosure in relation to the use of our Services.

3.2. You may use encryption technology to further protect your data from unauthorized access.

3.3. We will not move your data from the technical node in which it resides to another technical node in a different country, without notifying you, unless required to comply with the law or requests of governmental entities.

3.4. Each party acknowledges that it will have access to certain confidential information of the other party. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party's attorneys, accountants and other advisors as reasonably necessary to carry out the purposes of this Agreement), any of the other party's Confidential Information and will take reasonable precautions to protect the confidentiality of such information.

3.5. Information will not be deemed Confidential Information hereunder if such information: (i) is or becomes known without restriction to the receiving party from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes generally publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iii) is independently developed by the receiving party without reference to the Confidential Information.

4. Your responsibilities

4.1. You are the only entity responsible for the creation, development, operation, maintenance and use of your data and applications.

4.2. You must comply with our Acceptable Use Policy and the Law.

4.3. You are responsible for any claims from third parties related to your data or use of Service.

4.4. Your are responsible for properly choosing, configuring and using the Services and defining your own policies to maintain, secure, protect and backup your data.

4.5. You are responsible for end users' use of your data and applications and you will ensure that all end users do not put at risk your compliance with the obligations under this Agreement.

4.6. You are responsible for providing support to your end users (if any).

4.7. You are at least 18 years of age and have the legal capacity to enter into this Agreement.

4.8. If you registering for the Services as an entity or organization, you are duly authorized to do so

4.9. The individual clicking "I Accept" on this Agreement and completing the registration for the Services meets the requirements of 4.7 above and is an authorized representative of customer, and the customer's employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind the customer to this Agreement and all transactions conducted under the customer's account.

5. Fees and Payment

5.1. Smileupps is provided as a pay per use Service. You can use the Service only if you have enough credit left on your account or, in the case you are recipient of a free monthly quota, you have not yet reached this quota, from now on the "free monthly usage", in the current month.

5.2. "Credit left" is the sum of "Paid Credit" and "Bonus". "Paid credit" represents the quota that has been really paid by you through some "Top-up" operations. "Bonus" represents the quota that you eventually earned as extra bonus during a "Top-up" or as "Refund".

5.3. Your credit left is updated regularly, every twenty(20) minutes, and it is always available after login in your dashboard.

5.4. Credit left is affected negatively by "monthly usage" and positively by "Top-up" and "Refund" operations.

5.5. The "monthly usage" is a measure of resources consumed for any activities occured under your account, performed by you or any Third party using the Services you provide under your account. "Monthly usage" is calculated as specified on the pricing page available at http://www.smileupps.com/pricing. Monthly usage will impact "Paid Credit" first, than "Bonus" one.

5.6. Top-up are operations performed by you, to raise your credit left. To top-up your credit you will have to choose a fixed amount to top-up. Minimum amount is ten (10) €. As method of payment, Evernew will accept Paypal only.

5.7. "Refunds" are reimbursement operations performed by Smileupps staff, to raise your credit left. Refunds are performed on the "Bonus" portion of "Credit Left". Reimbursement can be performed by Evernew, at his own discretion, due to SLA non-compliances or marketing purposes.

5.8. Evernew can assign to each Customer, individually, a specific amount of "free monthly usage". This amount can be zero € or greater than zero. Evernew has the right to change this quota, by prior notifying each interested Customer, no less than fifteen (15) days before. The "free monthly usage" is provided as a mere form of courtesy, and cannot be pretended in any way by the Customer.

5.9. As soon as you run out of "credit left" and "free monthly usage" quota, your instance will be put in stand-by, waiting for a top-up operation.

5.10. Evernew can eventually give to you, upon agreement between the parties, the opportunity to have your instance always on, even with a negative credit, relaxing the art. 5.1 and 5.9. This would allow a Customer to pay a monthly bill after the month is effectively finished.

5.11. Your credit can eventually becomes negative during a month, for example in the case you have no credit left, but your data is consuming much disk space, or in the case you made a special agreement that gives you the opportunity to go negative(Art 5.10). At the end of the month, a negative credit will generate a non-paid or partially paid bill. In case of a non-paid or partially paid bill, the next top-up performed will be used, first to complete the payment of the non-paid or partially paid bills, then to raise the credit left. In the case of non-paid or partially-paid bills, Evernew reserves the right to suspend or terminate your account.

5.12. Fees for any new Service or new feature of a Service will be effective and applicable when posted in our web site, unless we expressly state otherwise in a notice. Changes on fees for any existing Service will be effective at a date determined by us, provided we post the information on our web site with at least 30 days advance notice.

5.13. We may charge you interest at the highest rate permitted by law on all late payments.

5.15. You may cancel a payment made within seven days of creating an account with Evernew, on our website.

Refund requests must be sent through our ticketing system. Refunds will be credited exclusively through PayPal after our billing department analyses your request, thirty (30) days from your request. In case we have incurred in any costs, we will detail it to you by email and those costs will be deducted from the refund.

6. Suspension of Service

6.1. We may suspend your Service, partially or in full, immediately upon notice to you if we determine: (a) you are in breach of this Agreement; (b) you are delayed for 15 or more days on the payment of any applicable fees. (c) you or an end user's use of the Service poses (i) a security risk to us or any third party, (ii) may adversely impact the Service or the systems on which the Services operate or the data of any other customer or (iii) may subject us or any third party to liability;

6.2. If we suspend your right to use any portion or all of the Service: (a) you will not be entitled to any service credits under any service level agreement for the period of suspension; (b) you remain responsible for all fees and charges you have incurred until the date of suspension and for all fees and changes of any Service you still use but we might not have suspended. (c) we will not erase any of your data and applications, except if the suspension lasts for more than 30 days and you have not resolved the reasons that led to the suspension.

7. Term and Termination

7.1. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated by you or us, according to 7.2. and 7.3.

7.2. Termination for Convenience: (a) You may terminate this Agreement at any time and for any reason by providing us notice, closing your account and terminating all the Services; (b) We may terminate this Agreement at any time and for any reason by providing you 30 days advance notice.

7.3. Termination for Cause: (a) Either party may terminate this Agreement for cause upon 30 days advance notice to the other party if there is any material default or breach of this Agreement by the other party, unless the defaulting party has cured the material default or breach within the thirty (30) day notice period. (b) We may also terminate this Agreement immediately upon notice to you if we believe providing the Services could create a substantial economic, technical or security risk for us or in order to comply with the law or requests of governmental entities or if the provision of any of the Services has become impractical for any legal or regulatory reason.

7.4. You remain responsible for all fees you have incurred until the date of termination. The customer's failure to timely pay all Fees as they become due shall constitute a material breach of this Agreement. If the customer is terminated for nonpayment, all outstanding invoices as well as the remainder of all monthly Fees for the remaining term of the Agreement will be immediately due and payable upon the termination date as and for liquidated damages, and not as a penalty. 7.4 You will not have access to your data or applications after the date of termination and therefore you must retrieve all the content that you require prior to the date of termination.

7.5. Any additional assistance after the termination date from us is subject to mutual agreement. The customer shall be entitled to take advantage of any post-termination assistance Evernew may make available with respect to the Services, such as data retrieval arrangements. Evernew may also endeavor to provide you unique post-suspension or post-termination assistance, but Evernew shall be under no obligation to do so. The customer's right to take advantage of any such assistance, whether generally made available with respect to the Services or made available uniquely to the customer and shall be conditional to the customer's acceptance of and compliance with any fees and terms Evernew may specify for such assistance.

7.6. Either party may terminate this Agreement upon written notice to the other party if such other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors.

8. Proprietary Rights

8.1. You or your licensors own all right, title, and interest in and to your data.

8.2. You represent and warrant to us that you or your licensors own all right, title, and interest in and to your data and applications.

8.3. We will not deliberately disclose your data, unless requested by the applicable governmental laws, regulatory bodies our court orders.

8.4. We, or our licensors, own and reserve all right, title, and interest in and to the Services. We grant you a limited, revocable, non-exclusive, non-sub licensable, non-transferrable license to use the Service during its Term. Some content or applications may be provided to you under a separate license, in which case that license will govern your use of the Service.

8.5. If you provide any suggestions to us, we will own all right, title, and interest in and to the suggestions without restriction.

8.6. The customer understands and agrees that as part of the Services, the customer may voluntarily participate in one or more email discussions, public discussion groups or blogs with other users or employees of Evernew. The customer understands and agrees that all information supplied as part of any such discussions shall be deemed non-confidential and not subject to the terms of Section 3. The customer shall be solely responsible for determining whether to disclose or share any information on the foregoing forum and upon such disclosure or sharing, the customer hereby grants Evernew a non-exclusive, royalty-free, worldwide license to disseminate and sublicense other users of such forum to use information as part of the Service. Evernew hereby grants to the customer a non-exclusive, royalty-free, and worldwide license to use information supplied as part of the forum solely in connection with the use of the Services. The customer hereby releases Evernew from any and all liability in connection with information posted on the forum and acknowledges and agrees that all information received by the customer is provided by Evernew and other customers exclusively on an "AS IS" basis and without express or implied warranties or representations of any kind as to accuracy, completeness, or otherwise. All content supplied, posted or received, as part of a forum shall at all times be subject to the terms of the AUP.

9. Indemnity

9.1 You will defend, indemnify, and hold harmless Evernew (including its officers, employees, agents, contractors, representatives, suppliers, subsidiaries, parents, and affiliated companies) from any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) by any of your customers or users, or any other third party, arising out of or related to you use of, misuse of, or failure to use the Service, including without limitation: (i) alleged Customer conduct that would breach this Agreement, including alleged infringement of intellectual property or privacy rights and other acceptable use policy violations; (ii) security breaches or other alleged faults in the Service, including without limitation faults listed in the SLA and faults leading to the release or exposure of personally identifiable information or other private data (whether such data belongs to you, to one of your customers, or to other third parties); and (iii) any action taken by us as part of an investigation into a suspected violation of this Agreement or as a result of its conclusion that a violation has occurred.

10. Warranties

10.1 Each party warrants that it has full capacity and authority, and all necessary licenses, permits and consents to enter into and perform this Agreement.

10.2 The Services shall be provided in compliance with applicable law and regulation.

10.3 Save as expressly set out in this Agreement, all conditions, warranties and representation, express or implied, statutory or otherwise (including the fitness of the Services for a particular purpose) are hereby excluded.

11. Liability

11.1 You shall indemnify and keep us indemnified against any and all costs, claims, losses, liabilities, proceedings and expenses (including legal fees) which are brought or threatened against us by any person, arising out of or in connection with the your use of the Services or breach of this Agreement.

11.2 Nothing in this Agreement shall exclude or limit either party's liability for fraud or fraudulent misrepresentation and any other matter for which liability cannot be excluded or limited as a matter of law.

11.3 We shall not be liable to you for any indirect, special or consequential loss of damage or loss of profits, business opportunities, revenue, anticipated savings; wasted expenditure, goodwill or for any loss or corruption or destruction of data.

11.4 Subject to clauses above, our total aggregate liability in contract, tort or otherwise (including negligence) howsoever arising out of or in connection with this Agreement shall in respect of any one or more incidents not exceed the total fees received by us from you in the calendar year in which the incident giving rise to the liability occurs.

11.5 The parties expressly agree that if any limitation or provision contained or expressly referred to in this clause is held to be invalid under any applicable statute or rule of law, it shall, to that extent, be deemed omitted. If any party becomes liable for loss or damage, which would otherwise have been excluded, that liability shall be subject to the other limitations and provisions set out in this clause.

12. Modifications to the Agreement

12.1 We may modify this Agreement and any Policies at any time by posting a revised version on our web site or by otherwise notifying you to the email address associated with your account. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check our web site regularly for modifications to this Agreement or the Additional Policies. The date on which this Agreement was revised is listed at the footer of this Agreement. If customer disagrees with any modifications to this Agreement, customer's sole and exclusive remedy shall be to terminate the receipt of Services in accordance with Section 7.

13. Force Majeure

13.1 Neither party to this Agreement shall be liable to the other for any delay or non-performance of its obligations under this Agreement to the extent that such delay or non-performance is due to a Force Majeure event (any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war). The Customer may not rely on a Force Majeure Event for any delay or non-performance of any obligation to pay for the fees related to the Services provided under this Agreement.

13.2 Either party may, during the continuance of any Force Majeure Event, terminate this Agreement by written notice to the other party if a Force Majeure Event occurs that affects all or a substantial part of the Services and which continues for more than 15 days.

14. Miscellaneous

14.1 This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.

14.2 We may provide any notice to you under this Agreement by posting information on our web site or by sending you a message to the email address associated with your account. Notices will become effective upon posting or, if we notify you by email, as stated in the email message. It is your responsibility to keep your email address valid. You will be deemed to have received any email sent to the email address associated with your account when we send the email, whether or not you actually receive and/or read the email.

14.3 To give us notice under this Agreement you must contact us by opening a support ticket.

14.4 All communications and notices to be made or given pursuant to this Agreement must be in the English language.

14.5 If any provision of this Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

14.6 This Agreement is personal to you and accordingly you shall not assign, or grant any security interest over, any of its rights or obligations under this Agreement without our prior written. We retain the right to assign this Agreement to any company in our group structure (subsidiary or holding, at any level, or any holding subsidiary).

14.7 This Agreement is subject to the laws of Italy and both parties hereby submit to the exclusive jurisdiction of the Italian Courts.