TERMS OF USE AGREEMENT
Last Revised: March 30, 2022
CANCELLATION RIGHTS
Special notice to California Members : You have the right to cancel your subscription
and/or upgrade(s) (including upgrades to a subscription and upgrades without a
subscription), without any penalty or obligation, at any time until midnight of the third
business day after the day on which you purchased a subscription and/or upgrade(s). To
cancel your subscription and/or upgrade(s), mail or deliver a signed and dated notice to
JSwipe Customer Care Smooch Labs, Inc., Attn: Customer Service 10808 S River Front
Parkway, Suite 398 South Jordan, UT 84095, write to us by following the
instructions here or send a telegram which states that you are cancelling your subscription
and/or upgrade(s) or words of a similar effect. Include your Company user name and the
email address used to register for the Services with such notice. For additional state specific
information relating to cancellation, please see Section 22 (Cancellation Rights).
Special notice to Canadian Members : Please refer to Section 26 first for information
about how this Terms of Use Agreement applies to Canadian members including a special
notice regarding provisions that are inapplicable in Quebec.
Special notice to Colorado Members: YOU, THE BUYER, MAY CANCEL THIS
CONTRACT, WITHOUT
ANY PENALTY OR OBLIGATION, AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD
BUSINESS DAY
FOLLOWING THE DATE OF THIS CONTRACT, EXCLUDING SUNDAYS AND HOLIDAYS.
NOTICE OF
CANCELLATION NEED NOT TAKE A PARTICULAR FORM AND IS EFFECTIVE IF IT
INDICATES YOUR DESIRE TO NOT BE BOUND BY THIS CONTRACT. TO CANCEL THIS
CONTRACT, SEND AN E-MAIL THAT STATES THAT YOU, THE BUYER, ARE
CANCELING THIS CONTRACT, OR WORDS OF SIMILAR EFFECT. SEND THIS NOTICE
THROUGH: https://support.jswipeapp.com/hc/en-us/requests/new
PLEASE READ THIS TERMS OF USE AGREEMENT CAREFULLY. BY ACCESSING OR
USING OUR SITES
AND OUR SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL
TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO ALL OF
THESE TERMS, DO NOT ACCESS OR USE OUR SITES OR OUR SERVICES.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES
PROVISION IN SECTION 20 THAT REQUIRES THE USE OF ARBITRATION ON AN
INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR
CLASS ACTIONS.
IF YOU BECOME A COMPANY SUBSCRIBER AND PAY BY CREDIT OR DEBIT CARD
(OR OTHER
PAYMENT METHOD ASSOCIATED WITH AN AUTOMATICALLY RENEWING
SUBSCRIPTION), YOUR
SUBSCRIPTION WILL AUTOMATICALLY RENEW FOR CERTAIN PERIODS OF TIME IF
YOU DO NOT CANCEL PRIOR TO THE END OF THE TERM. SEE SECTIONS 13(c) AND
(d) FOR MORE INFORMATION ON THE AUTOMATIC RENEWAL TERMS APPLICABLE
TO SUBSCRIPTIONS.
If you have any questions or comments about this Terms of Use Agreement, you may
contact the Company by writing to us at: JSwipe Customer Care Smooch Labs, Inc., Attn:
Customer Service Terms of Use, 10808 S River Front Parkway, Suite 398 South Jordan,
UT 84095.
This Terms of Use Agreement (the “Agreement”) is a legal agreement that governs our
relationship with users and others that interact with Smooch Labs, Inc. and our subsidiaries
and affiliates (the
“Company”, “we,” or “us”) in connection with the use of our applications or websites
(including https://jswipeapp.com/) (the “Sites”) and our Services (as defined below). We
currently make services, products and features available through our Sites, applications,
which include Mobile Software (as defined in Section 16) and applications available on social
networking sites and other platforms, and other downloadable products (the Sites, the
applications, the downloadable products and all products, services and features provided by
us in connection therewith shall be referred to collectively as, the “Services”). We may offer
additional services or products or modify or revise any of the Services at our discretion, and
this Agreement will apply to all additional services or products and all modified or revised
Services unless otherwise indicated. We also reserve the right to cease offering any of the
Services. You agree that we shall not be liable to you or any third party for any modification,
revision, suspension or discontinuance of any of the Services.
Your use of certain Services may be subject to additional terms and conditions, and such
terms and conditions will be either listed in this Agreement, or will be presented or
accessible to you by us when you sign up to use, or use, such Services (“Additional Terms”).
All such Additional Terms are incorporated by reference into this Agreement unless
otherwise indicated. This Agreement does not alter in any way the terms or conditions of any
other agreement you may have with us for products, services or otherwise.
All visitors to or users of our Sites or Services, whether registered or not, are “users” of the
Services for purposes of this Agreement. If you register for the Services by creating an
account, you become a “Member”.
This Agreement and any policy or guideline of the Services may be modified by us in our
sole discretion at any time. We shall provide notice of any such modification, which notice
shall, at a minimum, consist of posting the revised Agreement to the Sites. When we change
the Agreement, we will update the “last revised” date at the top of this page. If you are a non-
subscribing user or Member at the time of any modification, unless otherwise indicated, any
changes or modifications will be effective immediately upon posting the revisions to the Site
or Service, and your use of the Service after such posting will constitute acceptance by you
of the revised Agreement. If you are a
subscribing Member at the time of any change or modification, unless otherwise indicated
this Agreement will continue to govern your membership until such time that your
subscription renews as contemplated by Section 13. If you continue your subscription, the
renewal will constitute acceptance by you of the revised Agreement. Alternatively, if you
terminate your subscription at such time, your use of the Service after your termination will
constitute acceptance by you of the revised Agreement. As a result, you should frequently
review this Agreement and all applicable terms and policies to understand the terms that
apply to your use of the Services. If you do not agree to the amended terms, you must stop
using the Services.
1. ELECTRONIC RECORDS
Because the Services are provided electronically, you must consent to our providing
important information electronically if you wish to use the Services. You consent to being
provided with this Agreement, notices, disclosures, information, policies and other materials
in electronic form
(collectively “Electronic Records”), rather than in paper form in accordance with The
Electronic Signatures in Global and National Commerce Act. Your consent to receive
Electronic Records applies to all notices, disclosures, documents, records or other materials
of any kind that we may be required to provide to you.
Electronic Records will be provided on our Sites and Services or sent to the email address
associated with your account. You may wish to print out all Electronic Records and keep
them for your records. If you have any trouble printing out, downloading, and/or accessing
any Electronic Records, you may contact us in writing at the address provided above. In
order for you to access and retain Electronic Records sent by us, you must have the
following hardware and software: a computer or other access device capable of reading html
and text files, a modem or other means of accessing the Internet, a browser capable of
accessing and displaying the Company website and the ability to receive and read emails.
To print the Electronic Records, you will also need a printer.
You may withdraw your consent to receive Electronic Records by contacting us in writing at
the address provided above. However, the Services provided by us are only available if you
agree to receive Electronic Records, and you understand that withdrawing such consent will
result in your account being deactivated. You can obtain a paper copy of an Electronic
Record by contacting us in writing at the address provided above, provided that we may
charge a reasonable fee to cover the costs of printing and sending the requested Electronic
Record.
2. ELIGIBILITY
By accessing or using the Services, you represent and warrant that: (a) you are at least 18
years old; (b) you have never been convicted of a felony or any criminal offense
characterized as a sexual offense and are not required to register as a sex offender with any
government entity; (c) you have not previously been suspended or removed from the
Services; (d) you have the right, authority and capacity to enter into this Agreement and to
abide by all of the terms and conditions of this Agreement; (e) you are not a competitor of us
and are not using the Services for reasons that are in competition with us or other than for its
intended purpose; and (f) you are not located in, under the control of, or a national or
resident of any country which the United States has (i) embargoed, (ii) identified as a
“Specially Designated National” or (iii) placed on the Commerce Department’s Table of Deny
Orders.
3. USE OF THE SERVICES
You agree that you will only use the Services, including the posting of any content through
the Services, in a manner consistent with this Agreement and any and all applicable local,
state, national and international laws and regulations, including, but not limited to, United
States export control laws. Use of the Services is void where prohibited.
a. Member Account. You will create only one unique profile for use of the Services.
You will not include any telephone numbers, street addresses, URLs, multimedia, artworks
downloaded from external sources, email addresses or any other contact information in your
profile or in any other publicly viewable User Content (as defined in Section 4 below) or
other communications made in connection with your use of the Services. Additionally, you
will not include your last name in your dating profile. You understand and agree that anyone
may be able to view any information you choose to make publicly available.
b. Account Security. You understand that you are responsible for maintaining the
confidentiality of the username and password of your account, and you are fully responsible
for all activities that occur under your username and password, including the purchase of
any of our Paid Services (as defined in Section 13 below). You agree (a) to immediately
notify us if you suspect any unauthorized use of your username or password or any other
breach of security, (b) to ensure that you exit from your account at the end of each session,
(c) not to use the account, profile, username or password of any other user or Member and
(d) to use particular caution when accessing your account from a public or shared computer
so that others are not able to view or record your password or other personal information.
You acknowledge that we are not responsible for any loss or damage arising from the theft
or misappropriation of your username or password. We recommend that you use a strong
password for your account, never use the same password on multiple sites or services and
change your password frequently.
c. Exclusive Use. You will only use the Services for your sole, personal use and not
in connection with any commercial endeavors. You will not authorize others to use the
Services or otherwise attempt to transfer your right to use the Services to any other person
or entity.
d. Interactions with Other Users; Criminal Background Screenings . You assume
all risk when using the Services, including but not limited to all risks associated with any
online or offline interactions with others, including dating. There is no substitute for acting
with caution when communicating with any stranger who wants to meet you. YOU
ACKNOWLEDGE THAT, CURRENTLY, WE DO NOT ROUTINELY SCREEN OUR USERS,
INQUIRE INTO THE BACKGROUND OF OUR USERS, ATTEMPT TO
VERIFY INFORMATION PROVIDED BY OUR USERS OR CONDUCT CRIMINAL
SCREENINGS OF OUR
USERS. WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO CONDUCT SUCH
INQUIRIES OR SCREENINGS (INCLUDING THE SEARCH OF ANY SEX OFFENDER
REGISTRIES). YOU FURTHER
ACKNOWLEDGE THAT WE ARE UNDER NO OBLIGATION TO CONDUCT ANY SUCH
INVESTIGATIONS.
We do not make any representations, warranties or guarantees as to the conduct of its
users, information provided by users, or their compatibility with you. You acknowledge that
not all users are available for matching and that we may create test profiles or accounts to
monitor the operation of the Services. You agree to take all necessary precautions when
meeting other users, especially if you decide to meet in person. IN ADDITION, YOU AGREE
TO REVIEW OUR ONLINE DATING SAFETY TIPS PRIOR TO USING THE SERVICES.
These tips provide general advice aimed at engaging in safer dating practices, such as not
providing your last name, home address, place of work, financial information (such as your
credit card number or your bank account number) or other identifying information to other
users and stopping all communications with anyone who pressures you for personal or
financial information or attempts in any way to trick you into revealing it. You agree to treat
all other users with dignity and respect and comply with our user conduct rules set forth in
Section 3(f) below.
e. No Commercial Solicitation or Advertising. You will not engage in any
advertising or solicitation to buy or sell any products or services through the use of the
Services and you will not transmit any chain letters, junk or spam email to other users.
Additionally, you will not use any information obtained from the Services in order to contact,
advertise to, solicit or sell to any user without their prior explicit consent.
f. User Conduct. We are not responsible or liable in any manner for the conduct of
our users, whether or not such conduct is in connection with the use of the Site or the
Services. YOU ACKNOWLEDGE THAT YOU USE THE SERVICES AT YOUR OWN RISK.
You agree not to do any of the following in connection with the Services or the users thereof:
i. use the Service in any unlawful manner or in a manner that is harmful to or violates
the rights of others;
ii. engage in any unlawful, harassing, obscene, intimidating, threatening, predatory or
stalking conduct;
iii. use the Services in any manner that could disrupt, damage, disable, overburden,
impair or affect the performance of the Services or interfere with or attempt to interfere with
any other user’s use of the Services;
iv. attempt to interfere with, compromise the system integrity or security or decipher
any transmissions to or from the servers running the Service;
v. impersonate any person or entity, or misrepresent your age, identity, affiliation,
connection or association with, any person or entity;
vi. make any commercial use of the Services or promote or solicit involvement in or
support of a political platform, religion, cult, or sect; vii. defraud, swindle or deceive other
users of the Services;
viii. disseminate another person’s personal information without his or her permission, or
collect or solicit another person’s personal information for commercial or unlawful purposes;
ix. solicit or engage in gambling or any similar activity or any illegal or unlawful activity;
x. use any scripts, bots or other automated technology to scrape or access the Services or
take any action that imposes, or may impose at our sole discretion an unreasonable or
disproportionately large load on our infrastructure; xi. collect or solicit personal information
about anyone under 18; xii. use the Service for any phishing, trolling or similar activities;
xiii. use the Service to redirect users to other sites or encourage users to visit other sites;
xiv. harvest or collect email addresses or other contact information of other users from the
Services by electronic or other means or use the Services to send, either directly or
indirectly, any unsolicited bulk e-mail or communications, unsolicited commercial e-mail or
communications or other spamming or spimming activities; xv. attempt to access any
Services or area of the Sites that you are not authorized to access;
xvi. bypass the measures we may use to prevent or restrict access to the Service,
including without limitation features that prevent or restrict use or copying of any content or
enforce limitations on use of the Service or the content therein;
xvii. use another user’s account or permit or allow other people or third parties to
access and use the Services via your account; or xviii. upload invalid data, viruses, worms,
or other software agents through the Services.
g. Reporting Violations. If you wish to report any violation of this Agreement by
others, including Members, you may do so by using the “Report This Profile” button or
similar button or link on the Services or by writing to us by following the instructions here .
h. Verification and Enforcement. Although we do not routinely conduct criminal
screenings of our users, you agree that we have the right to do so at our sole discretion, and
you consent to such screening and agree to provide to us complete, accurate and current
information confirming your eligibility for use of the Services. You understand and agree that
if the Company believes in its sole discretion that you have violated the terms of this
Agreement, misused the Services or behaved in a way that could be regarded as
inappropriate, unlawful, illegal or unsafe, the Company may, among other things,
investigate, take legal action against you and/or terminate your account and cancel your
subscription and/or membership.
4. USER CONTENT
a. Responsibility for User Content. You are solely responsible for the content and
information that you provide, publish, transmit, display or otherwise communicate to us
through the Services or to other users (collectively referred to as “post”), including without
limitation messages, data, text, photos, video, music, graphics, links or other materials
posted through chat messages, community pages, email messages, mobile messages,
photos and profile information (your submissions and those of other users, collectively, are
“User Content”). The Company does not control, take responsibility for or assume liability for
any User Content posted by you or any third party, or for any loss or damage thereto, nor is
the Company liable for any mistakes, defamation, slander, libel, omissions, falsehoods,
obscenity, pornography or profanity you encounter. YOU ARE SOLELY RESPONSIBLE
FOR YOUR USE OF THE SERVICES AND USE THEM AT YOUR OWN RISK.
b. Accuracy of Information. You will not post any inaccurate, misleading, incomplete
or false information or User Content to us or to any other user. You agree that all images
posted to your dating profile are of you and were taken within the last 2 years and agree to
update your dating profile accordingly. You may be required to supply certain information
and post a photo of yourself to use the Services.
c. No Duty to Review User Content. Although you understand and acknowledge that
the Company has no duty to prescreen, review, control, monitor or edit the User Content
posted by users and is not liable for User Content that is provided by others, you agree that
the Company may, at its sole discretion, review, edit, refuse to accept or delete User
Content at any time and for any reason or no reason without notice, and you are solely
responsible for creating backup copies and replacing any
User Content you post or store on the Services at your sole cost and expense. This includes
the Company’s right to modify, crop or “photoshop” any photos you submit to comply with
the Company’s policies, practices and procedures.
d. License of User Content to the Company. The Company claims no ownership or
control over your User Content, except as otherwise specifically provided herein, on the
Services or in a separate agreement. By submitting or posting User Content, you hereby
grant, and you represent and warrant that you have the right to grant, to the Company, its
affiliates, licensees and successors an irrevocable, perpetual, non-exclusive, transferable,
fully paid, royalty-free, worldwide right and license to use, copy, publicly perform, publicly
display, reproduce, adapt, modify, distribute, publish, list information regarding, translate,
and syndicate such User Content furnished by you and to prepare derivative works of, or
incorporate into other works, such information and User Content, and to grant and authorize
sublicenses of the foregoing in any medium. You represent and warrant that the User
Content and the public posting and use of your User Content by the Company will not
infringe or violate any third-party rights, including without limitation any intellectual property
rights or rights of privacy or publicity, or cause any harm to any third party or violate the
terms of this Agreement. You further represent and warrant that you have the written
consent of each and every identifiable natural person in your User Content to use such
person’s name, voice, or likeness in the manner contemplated by the Service and this
Agreement, and each such person has released you from any liability that may arise in
relation to such use. By posting User Content, you hereby release the Company and its
agents and employees from any claims that such use, as authorized above, violates any of
your rights and you understand that you will not be entitled to any additional compensation
for any use of your User Content.
e. Use of Proprietary Information of Others. You will not post, copy, transfer, create
any derivative works from, distribute, reproduce or show in any manner any copyrighted or
trademarked or other proprietary information or materials, including any User Content
posted by other users, without the prior consent of the owner of such proprietary rights. You
acknowledge that information or materials available through the Services may have
copyright protection whether or not it is identified as being copyrighted.
f. Prohibited Content. You will not post, transmit or deliver to any other user, either
directly or indirectly, any User Content that violates any third-party rights or any applicable
law, rule or regulation or is prohibited under this Agreement or any other Company policy
governing your use of the Services (“Prohibited Content”). Prohibited Content includes
without limitation User Content that:
i. is obscene, pornographic, profane, defamatory, abusive, offensive, indecent, sexually
oriented, threatening, harassing, inflammatory, inaccurate, misrepresentative, fraudulent
or illegal; ii. promotes racism, bigotry, hatred or physical harm of any kind against any
group or individual; iii. is intended to, or does, harass, or intimidate any other user or
third party;
iv. may infringe or violate any patent, trademark, trade secret, copyright or other
intellectual or proprietary right of any party, including User Content that contains others’
copyrighted content (e.g., photos, images, music, movies, videos, etc.) without obtaining
proper permission first;
v. contains video, audio, photographs, or images of another person without his or her
express written consent (or in the case of a minor, the minor’s legal guardian) or otherwise
violates anyone’s right of privacy or publicity;
vi. promotes or enables illegal or unlawful activities, such as instructions on how to
make or buy illegal weapons or drugs; vii. violates someone’s data privacy or data protection
rights;
viii. contains viruses, time bombs, trojan horses, cancelbots, worms or other harmful, or
disruptive codes, components or devices; ix. contains any advertising, fundraising or
promotional content; or
x. is, in the sole judgment of the Company, objectionable or restricts or inhibits any person
from using or enjoying the Services or exposes the Company or its users to harm or liability
of any type.
g. Submissions. Separate and apart from the User Content you provide as part of
your use of the Services, you can submit questions, comments, feedback, suggestions,
success stories, ideas, plans, notes, drawings, original or creative materials or other
information relating to the Company and our Services (collectively, “Submissions”).
Submissions, whether posted to the Services or provided to the Company by email or
otherwise, are non-confidential and shall become the sole property of the Company. You
hereby assign to the Company all right, title and interest, including without limitation all
intellectual property rights, in and to any and all Submissions. The Company shall be entitled
to the unrestricted use and dissemination of any Submissions for any purpose, commercial
or otherwise, without acknowledgment or compensation to you.
h. Social Networking Sites. If you have enabled the use of our Services through a
third-party social networking or similar site or mobile or other application (a “Social
Networking Site”), such as Facebook, Google or Twitter, you permit the Company to access
certain information about you that is made available to the Company through or from that
Social Networking Site. The information obtained by the Company varies by Social
Networking Site and may be affected by the privacy settings you establish at that Social
Networking Site, but can include information such as your name, profile picture, network,
gender, username, user ID, age range or birthday, language, location, country, interests,
contacts list, friends lists or followers and other information. By accessing or using our
Services through a Social Networking Site, you are authorizing the Company to collect,
store, retain and use, in accordance with our Privacy Policy, any and all of your information
that the Company has obtained from the Social Networking Site, including to create a
Company profile page and account for you. Depending on the Social Networking Site and
your privacy settings, the Company may also post information to your Social Networking
Site. Your agreement to the foregoing takes place when you “accept” or “allow” or “go to” (or
other similar terms) our application on a Social Networking Site or the transfer of information
to the Company from such site. If there is information about your “friends” or people you are
associated with in your Social Networking Site account, the information we obtain about
those persons may also depend on the privacy settings such people have with the
applicable Social Networking Site. You acknowledge and agree that the Company is not
responsible for, and has no control over, any applicable privacy settings on any
Social Networking Sites (including any settings related to any messages or advertisements
about the Company that the Social Networking Site may send to you or your friends). You
should always review, and if necessary, adjust your privacy settings on Social Networking
Sites before getting or using applications such as ours or linking or connecting your Social
Networking Site account to the Services. You may also unlink your Social Networking Site
account from the Services by adjusting your settings on the Social Networking Site.
5. PRIVACY
Please refer to our Privacy Policy for information about how the Company collects, uses,
stores and discloses personally identifiable information from its users. You understand and
agree that if you post any content, information or material of a personal or private nature in
your profile or in any public areas of the Company or post or provide to the Company any
information or content which is intended to be shared with other users, such content,
information and materials will be shared with others accordingly, and you hereby consent to
such sharing. You understand that by using the Services you consent to the collection, use
and disclosure of your personally identifiable information and aggregate data as set forth in
our Privacy Policy, and to have your personally identifiable information collected, used,
transferred to and processed in the United States or any other country in which we process
your data or make the Services available. You also consent to receive emails from us in
connection with the use or promotion of the Services.
6. INTELLECTUAL PROPERTY RIGHTS AND LIMITED LICENSE
Except for your User Content, the Service and all materials therein or transferred thereby,
including, without limitation, software, images, text, graphics, designs, illustrations, Company
logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music,
information, data, other files and the arrangement thereof and User Content belonging to
other users (the “Proprietary Materials”), and all intellectual property rights related thereto,
are the exclusive property of the Company and its licensors (including other users who post
User Content to the Service). Except as explicitly provided herein, nothing in this Agreement
shall be deemed to create a license in or under any such intellectual property rights of the
Company.
You are hereby granted a non-exclusive, limited, non-transferable, non-sublicensable, freely
revocable license to access and use the Services as permitted by the features of the
Services, subject to the terms and conditions of this Agreement. You agree that you will not
(i) copy, modify, publish, adapt, sublicense, translate, sell, distribute, transmit, perform,
display, reverse engineer, decipher, decompile or otherwise disassemble any portion of the
Proprietary Materials or the Services or cause others to do so; (ii) “frame” or “mirror” any part
of the Services, without our prior written authorization; (iii) use meta tags or code or other
devices containing any reference to the Company or the Services in order to direct any
person to any other website for any purpose; (iv) resell or make any commercial use of the
Services; (v) use any data mining, robots, or similar data gathering or extraction methods or
otherwise collect any pictures, descriptions, data or other content from the Services; (vi)
forge headers or otherwise manipulate identifiers in order to disguise the origin of any
information transmitted through the Services; (vii) use any automated methods or processes
to create user accounts or access the Services or (viii) use the Proprietary Materials or the
Services other than for their intended purpose. Any use of the Services or Proprietary
Materials other than as expressly authorized herein, without the prior written consent of the
Company, is strictly prohibited and will violate and terminate the license granted herein.
Such unauthorized use may also violate applicable laws, including without limitation
copyright and trademark laws and applicable communications regulations and statutes.
Unless explicitly stated herein, nothing in this Agreement shall be construed as conferring
any license to intellectual property rights, whether by estoppel, implication or otherwise. The
Company reserves all rights not expressly granted herein in the Services and the Proprietary
Materials. This license is revocable at any time.
7. REPEAT INFRINGER POLICY
If you become aware of any violation of any intellectual property laws (in particular in respect
of User Content) you should report this to us by writing to us by following the
instructions here , including your name and address, details of the location of the content in
question and details of the unlawful nature of the activity or the content.
The Company reserves the right to terminate, in its sole discretion, users who are deemed to
be repeat infringers. The Company may also, in its sole discretion, limit access to the
Services and/or terminate the accounts of any users who infringe any intellectual property
rights of others, whether or not there is any repeat infringement.
8. COPYRIGHT POLICY
If you are a copyright owner or an agent thereof and believe that anything on the sites
infringes upon your copyrights, you may submit a notification of infringement pursuant to the
Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the
following information: (i) an electronic or physical signature of the person authorized to act
on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that
you claim has been infringed; (iii) a description of where the material that you claim is
infringing is located on our website (please include URLs to help us identify the material); (iv)
your address, telephone number, and email address; (v) a written 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; and (vi) a statement by you, made under penalty of perjury, that the above
information in your notice is accurate and that you are the copyright owner or authorized to
act on the copyright owner’s behalf. the Company’s designated Copyright Agent to receive
notifications of claimed infringement is:
JSwipe Customer Care Smooch Labs, Inc.
Attn: Copyright Agent
10808 S River Front Parkway, Suite 398
South Jordan, UT 84095
USA
[email protected]t (only DMCA notices will be accepted at this email address; all other
inquiries or requests will be discarded)
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE
MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR
PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS,
AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying the Company and its affiliates that
your copyrighted material has been infringed. The preceding requirements are intended to
comply with the Company’s rights and obligations under the DMCA, including 17 U.S.C.
§512(c), but do not constitute legal advice. It may be advisable to contact an attorney
regarding your rights and obligations under the DMCA and other applicable laws.
9. TRADEMARKS
The Company’s logos and any other trade name or slogan contained in the Services are
trademarks or service marks of the Company, its partners or its licensors and may not be
copied, imitated or used, in whole or in part, without the prior written permission of the
Company or the applicable trademark holder. In addition, the look and feel of the Services,
including all page headers, custom graphics, button icons and scripts, is the service mark,
trademark and/or trade dress of the Company and may not be copied, imitated or used, in
whole or in part, without our prior written permission. All other trademarks, registered
trademarks, product names and company names or logos mentioned in the Services are the
property of their respective owners. Reference to any products, services, processes or other
information, by trade name, trademark, manufacturer, supplier or otherwise does not
constitute or imply endorsement, sponsorship or recommendation thereof by us.
10. HYPERLINKS
You are granted a limited, freely revocable, non-exclusive right to create a text hyperlink to
the Company websites for noncommercial purposes, provided such link does not portray the
Company or its Services in a false, misleading, derogatory or otherwise defamatory manner
and provided further that the linking site is not directed at children and does not contain any
adult or illegal material or any material that is offensive, harassing or otherwise
objectionable. This limited right may be revoked at any time. You may not use the
Company’s logo or proprietary graphics to link to any Company website without our express
written permission. Further, you may not use, frame or utilize framing techniques to enclose
any Company trademark, logo or other proprietary information, including the images found in
the Services, the content of any text or the layout/design of any page or form contained in
the Services without the Company’s express written consent. Except as noted above, you
are not conveyed any right or license by implication, estoppel or otherwise in or under any
patent, trademark, copyright or proprietary right of the Company or any third party.
The Company makes no claim or representation regarding, and accepts no responsibility for,
the quality, content, nature or reliability of third-party websites accessible by hyperlink from
the Services. Such sites are not under the control of the Company and the Company is not
responsible for the content of any linked site or any link contained in a linked site, or any
review, changes or updates to such sites. the Company provides these links to you only as a
convenience, and the inclusion of any link does not imply affiliation, endorsement or
adoption by the Company of any site or any information contained therein. When you leave
the Services, you should be aware that our terms and policies no longer govern. You should
review the applicable terms and policies, including privacy and data gathering practices, of
any site to which you navigate from the Services. You understand and agree that you access
any such third-party sites and services at your own risk.
11. THIRD PARTY CONTENT
The Company may provide third party content on the Services and may provide links to web
pages and content of third parties (collectively the “Third Party Content”) as a service to
those interested in this information. The Company does not control, endorse or adopt any
Third Party Content and makes no representations or warranties of any kind regarding the
Third Party Content, including without limitation regarding its accuracy or completeness. You
acknowledge and agree that the Company is not responsible or liable in any manner for any
Third Party Content and undertakes no responsibility to update or review any Third Party
Content. Users use such Third Party Content contained therein at their own risk.
12. ADVERTISERS AND OTHER THIRD PARTIES
The Services may contain advertisements and promotions from third parties or may
otherwise provide information about or links to third party products or services. Your dealings
or correspondence with, or participation in promotions of, such third parties, and any terms,
conditions, warranties or representations associated with such dealings or promotions, are
solely between you and such third party. The Company is not responsible for, and does not
endorse, any features, content, advertising, products, services or other materials on or
available from third party sites. You agree that the Company shall not be responsible or
liable, directly or indirectly, for any loss or damage of any sort incurred as the result of such
dealings or as a result of the presence of such third party advertisers or third party
information on the Services.
13. PAID SERVICES
a. General. If you purchase any Services that we offer for a fee (the “Paid Services”), such
as a subscription to our Services or virtual coins (as described below), you authorize the
Company and our designated payment processors to store your payment information
and other related information. You also agree to pay the applicable fees for the Paid
Services (including without limitation periodic fees for ongoing subscriptions (the
“Subscription Fees”) as set forth on the Services) as they become due plus all related
taxes (including without limitation sales and use taxes, duties or other governmental
taxes or fees), and to reimburse us for all collection costs and interest for any overdue
amounts. All fees and charges are nonrefundable and there are no refunds or credits for
any partially used Paid Services (including partially used subscription periods) except (i)
as expressly set forth in this Agreement, (ii) as otherwise required by applicable law and
(iii) at the Company’s sole and absolute discretion. Fees for the Paid Services may be
payable in advance, in arrears, per usage or as otherwise described when you initially
purchase the Paid Services. All prices for Paid Services are subject to change without
notice (except as otherwise described in this Section 13).
b. Payment Method. The Company may, from time to time, offer various payment
methods, including without limitation payment by credit card, by debit card, by check, by
certain mobile payment providers or by using PayPal. You authorize the Company to
charge you for Paid Services through any payment method(s) you select when
purchasing the Paid Services (the “Payment Method”) and you agree to make payment
using such Payment Method(s) (we may, from time to time, receive and use updated
payment method information provided by you or that financial institutions or payment
processors may provide to us to update information related to your Payment Method(s),
such as updated expiration dates or account numbers). Certain Payment Methods, such
as credit cards and debit cards, may involve agreements between you and the financial
institution, credit card issuer or other provider of your chosen Payment Methods (the
“Payment Method Provider”). If we do not receive payment from your Payment Method
Provider, you agree to directly pay all amounts due upon demand from us. Your non-
termination or continued use of the Paid Services reaffirms that we are authorized to
charge your Payment Method. The Company’s Paid Services may also be purchased
through your accounts with certain third parties, such as your Apple iTunes account,
your Google Play account or your Amazon account (a “Third Party Account”). If you
purchase any Paid Services through a Third Party Account, billing for these Paid
Services will appear through your Third Party Account. You should review the Third
Party Account’s terms and conditions, which we do not control.
c. Automatic Renewal of Subscriptions. IF YOU PAY FOR A SUBSCRIPTION BY
CREDIT OR DEBIT CARD
(OR OTHER PAYMENT METHOD IDENTIFIED ON OUR SERVICES OR A SOCIAL
NETWORKING SITE AS INVOLVING AN AUTOMATICALLY RENEWING SUBSCRIPTION)
AND YOU DO NOT CANCEL YOUR
SUBSCRIPTION AS SET FORTH IN SECTION 13(d) BELOW PRIOR TO THE END OF
THE SUBSCRIPTION
TERM, YOUR SUBSCRIPTION WILL BE AUTOMATICALLY EXTENDED AT THE END OF
EACH TERM FOR
SUCCESSIVE RENEWAL PERIODS OF THE SAME DURATION AS THE SUBSCRIPTION
TERM ORIGINALLY
SELECTED (FOR EXAMPLE, UNLESS YOU CANCEL, A ONE MONTH SUBSCRIPTION
WILL
AUTOMATICALLY RENEW ON A MONTHLY BASIS AND A SIX MONTH SUBSCRIPTION
WILL
AUTOMATICALLY RENEW ON A SIX MONTH BASIS). UNLESS OTHERWISE INDICATED
IN ANY
APPLICABLE ADDITIONAL TERMS OR COMMUNICATIONS WE SEND TO YOUR
REGISTERED EMAIL
ADDRESS, SUCH RENEWAL WILL BE AT THE SAME SUBSCRIPTION FEE AS WHEN
YOU FIRST
SUBSCRIBED, PLUS ANY APPLICABLE TAXES, UNLESS WE NOTIFY YOU AT LEAST
10 DAYS PRIOR TO
THE END OF YOUR CURRENT TERM THAT THE SUBSCRIPTION FEE WILL INCREASE.
YOU
ACKNOWLEDGE AND AGREE THAT YOUR PAYMENT METHOD WILL BE
AUTOMATICALLY CHARGED
FOR SUCH SUBSCRIPTION FEES, PLUS ANY APPLICABLE TAXES, UPON EACH SUCH
AUTOMATIC
RENEWAL. YOU ACKNOWLEDGE THAT YOUR SUBSCRIPTION IS SUBJECT TO
AUTOMATIC RENEWALS
AND YOU CONSENT TO AND ACCEPT RESPONSIBILITY FOR ALL RECURRING
CHARGES TO YOUR
CREDIT OR DEBIT CARD (OR OTHER PAYMENT METHOD, AS APPLICABLE) BASED
ON THIS
AUTOMATIC RENEWAL FEATURE WITHOUT FURTHER AUTHORIZATION FROM YOU
AND WITHOUT
FURTHER NOTICE EXCEPT AS REQUIRED BY LAW. YOU FURTHER ACKNOWLEDGE
THAT THE AMOUNT OF THE RECURRING CHARGE MAY CHANGE IF THE
APPLICABLE TAX RATES CHANGE OR IF YOU ARE NOTIFIED THAT THERE WILL BE
AN INCREASE IN THE APPLICABLE SUBSCRIPTION FEES.
d. Cancellation of Subscriptions. TO CHANGE OR CANCEL YOUR SUBSCRIPTION AT
ANY TIME, OTHER THAN PURSUANT TO SECTION 22, GO TO THE APP STORE WITH
WHICH YOU SUBSCRIBED T OUR
PLATFORM AND FOLLOW THE INSTRUCTIONS. IF YOU PURCHASED A
SUBSCRIPTION THROUGH A
THIRD PARTY ACCOUNT, YOU WILL NEED TO CANCEL YOUR SUBSCRIPTION
THROUGH THAT THIRD
PARTY AND IN ACCORDANCE WITH THAT THIRD PARTY’S TERMS AND CONDITIONS.
IF YOU CANCEL
YOUR SUBSCRIPTION, OTHER THAN PURSUANT TO SECTION 22, YOUR
SUBSCRIPTION BENEFITS WILL
CONTINUE UNTIL THE END OF YOUR THEN CURRENT SUBSCRIPTION TERM, BUT
YOUR
SUBSCRIPTION WILL NOT BE RENEWED AFTER THAT TERM EXPIRES. YOU WILL
NOT BE ENTITLED TO
A PRORATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEES PAID FOR
THE THEN CURRENT SUBSCRIPTION TERM, EXCEPT AS PROVIDED IN SECTION 22
OF THIS AGREEMENT OR AS REQUIRED BY APPLICABLE LAW.
e. Current Information Required. You agree to provide current, complete and
accurate billing information and agree to promptly update all such information (such as
changes in billing address, credit card number or credit card expiration date) as necessary
for the processing of all payments that are due to the Company. You agree to promptly
notify the Company if your Payment Method is canceled (for example, due to loss or theft) or
if you become aware of a potential breach of security related to your Payment Method. If you
fail to provide any of the foregoing information, you acknowledge that your current Payment
Method may continue to be charged for Paid Services and you remain responsible for all
such charges.
f. Change in Amount Authorized. If the total amount to be charged varies from the
amount you authorized when purchasing any Paid Services (other than due to the imposition
or change in the amount of taxes, including without limitation sales and use taxes, duties or
other governmental taxes or fees), the Company will provide notice of the amount to be
charged and the date of the charge at least 10 days before the scheduled date of the
transaction. If you do not cancel your Paid Services before the increased price goes into
effect, you agree to pay the increased price for the Paid Services. You agree that the
Company may accumulate charges incurred and submit them as one or more aggregate
charge during or at the end of each billing cycle. The Company will inform you of any
additional charges that are accumulated.
g. Virtual Currency and Virtual Products. Please see our Virtual Goods and
Currency Terms of Use here for additional terms applicable to the purchase and use of
virtual currency and virtual products offered by us. Typically, our virtual currency may be
used to purchase certain features or virtual goods in connection with our Services. Any
virtual currency you receive as a promotion from us will be subject to the terms of our Virtual
Goods and Currency Terms of Use.
h. Incorrect Payments and Errors. In the event that you submit to us a payment for
Paid Services that does not match the price for the Paid Services you selected, the
Company shall have the right, in its sole and absolute discretion, to (1) return or refund all or
some of the amount of your payment, (2) apply all or some of your payment amount to other
similar Paid Services that have a purchase price less than the amount of your payment, (3)
apply all or some of the amount of your payment to the purchase of our virtual currency or
(4) apply your payment in any combination of the foregoing ways. The Company reserves
the right to correct any errors or mistakes that it makes even if it has already requested or
received payment.
14. MOBILE SERVICES
You may access and use certain features of the Services using certain mobile devices (the
“Mobile
Services”). Your access and use of the Mobile Services is subject to the terms and
conditions of this Agreement, including without limitation the terms and conditions regarding
the use and submission of User Content, as well as any Additional Terms presented to you
for your acceptance when you sign up to use our Mobile Services.
Please note that by accessing or using the Mobile Services, your carrier’s normal rates and
fees, such as standard message and data rates, still apply and you are solely responsible for
the payment of those fees.
15. DOWNLOADABLE APPLICATIONS
By using any downloadable application to enable your use of the Services, you are expressly
confirming your acceptance of the terms and conditions of any End User License
Agreement, or similar agreement, associated with the application provided at download or
installation, or as may be updated from time to time.
16. MOBILE SOFTWARE
a. Mobile Software. We may make available software to access the Services via a
mobile or tablet device (“Mobile Software”). Mobile Software also includes any updates,
upgrades or other new features, functionality, improvements or enhancements to the Mobile
Software and any on-line, read me, help files, or other related explanatory materials relating
to the Mobile Software. To use the Mobile Software, you must have a device that is
compatible with the Mobile Software. The Company does not warrant that the Mobile
Software will be compatible with your device. The Company hereby grants you a non-
exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile
Software for one Company account on one device owned or leased solely by you, for your
personal use only. You may not: (i) modify, disassemble, decompile or reverse engineer the
Mobile Software, except to the extent that such restriction is expressly prohibited by law; (ii)
rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Software to
any third party or use the Mobile Software to provide time sharing or similar services for any
third party; (iii) make any copies of the Mobile Software; (iv) remove, circumvent, disable,
damage or otherwise interfere with security-related features of the Mobile Software, features
that prevent or restrict use or copying of any content accessible through the Mobile
Software, or features that enforce limitations on use of the Mobile Software; (v) delete the
copyright and other proprietary rights notices on the Mobile Software; (vi) block, disable or
otherwise affect any advertising, advertisement banner window, links to other sites and
services, or other features that constitute an integral part of the Mobile Software; (vii) use
the Mobile Software on any device that you do not own or control; or (viii) distribute or make
the Mobile Software available over a network where it could be used by multiple devices at
the same time. You agree to use your best efforts to prevent and protect the contents of the
Mobile Software from unauthorized use or disclosure. You acknowledge that the Company
may from time to time issue upgraded versions of the Mobile Software, and may
automatically electronically upgrade the version of the Mobile Software that you are using on
your device. You consent to such automatic upgrading on your device, and agree that the
terms and conditions of this Agreement will apply to all such upgrades. Any third-party code
that may be incorporated in the Mobile Software is covered by the applicable open source or
third-party End User License Agreement, if any, authorizing use of such code. The foregoing
license grant is not a sale of the Mobile Software or any copy thereof, and the Company or
its third party partners or suppliers retain all right, title, and interest in the Mobile Software
(and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations
hereunder, except as expressly provided for in this Agreement, is void. The Company
reserves all rights not expressly granted under this Agreement. Additional terms to those
contained in this Section 16 may be contained in an End User License Agreement
associated with any Mobile Software. Please see the applicable End User License
Agreement for more information.
b. Mobile Software from iTunes or the App Store. The following applies to any
Mobile Software you acquire or download from the iTunes Store or the App Store provided
by Apple (“iTunes-Sourced Software”): You acknowledge and agree that this Agreement is
solely between you and the Company, not Apple, and that Apple has no responsibility for the
iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must
comply with the App Store Terms of Service. You acknowledge that Apple has no obligation
whatsoever to furnish any maintenance and support services with respect to the iTunes-
Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to
any applicable warranty, you may notify Apple, and Apple will refund the purchase price for
the iTunes-Sourced Software to you; to the maximum extent permitted by applicable law,
Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced
Software, and any other claims, losses, liabilities, damages, costs or expenses attributable
to any failure to conform to any warranty will be solely governed by this Agreement and any
law applicable to the Company as provider of the software. You acknowledge that Apple is
not responsible for addressing any claims of you or any third party relating to the iTunes-
Sourced Software or your possession and/or use of the iTunes-Sourced Software, including,
but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software
fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising
under consumer protection or similar legislation; and all such claims are governed solely by
this Agreement and any law applicable to the Company as provider of the software. You
acknowledge that, in the event of any third party claim that the iTunes-Sourced Software or
your possession and use of that iTunes-Sourced Software infringes that third party’s
intellectual property rights, the Company, not Apple, will be solely responsible for the
investigation, defense, settlement and discharge of any such intellectual property
infringement claim to the extent required by this Agreement. You and the Company
acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of
this Agreement as relates to your license of the iTunes-Sourced Software, and that, upon
your acceptance of the terms and conditions of this Agreement, Apple will have the right
(and will be deemed to have accepted the right) to enforce this Agreement as relates to your
license of the iTunes-Sourced Software against you as a third party beneficiary thereof.
Without limiting any other terms of this Agreement, you must comply with all applicable third
party terms of agreement when using iTunes-Sourced Software.
c. Mobile Software from Google Play Store. The following applies to any Mobile
Software you acquire from the Google Play Store (“Google-Sourced Software”): (i) you
acknowledge that the Agreement is between you and the Company only, and not with
Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with
Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of
the Google Play Store where you obtained the GoogleSourced Software; (iv) the Company,
and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no
obligation or liability to you with respect to Google-Sourced Software or the Agreement; and
(vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as
it relates to the Company’s Google-Sourced Software.
d. No Support. This Agreement does not entitle you to receive from the Company, its
licensors, or Apple, any hard-copy documentation, support, telephone assistance,
maintenance, or enhancements or updates to the Mobile Software.
e. U.S. Government End Users. The Mobile Software was developed by private
financing and constitutes a “Commercial Item,” as that term is defined at 48 C.F.R. §2.101.
The Mobile Software
consists of “Commercial Computer Software” and “Commercial Computer Software
Documentation,” as such terms are used in 48 C.F.R. §12.212. Consistent with 48 C.F.R.
§12.212 and 48 C.F.R. §227.7202-1 through 227.7202-4, all U.S. Government end users
acquire only those rights in the Mobile Software that are expressly provided by this
Agreement. Consistent with 48 C.F.R. §12.211, all U.S. Government end users acquire only
technical data and the rights in that data as expressly provided in this Agreement. Any use,
reproduction, release, performance, display or disclosure of the Mobile Software by the U.S.
Government will be governed solely by this Agreement and is prohibited except to the extent
expressly permitted by the terms of this Agreement.
f. Export Controls. The Mobile Software and the underlying information and
technology may not be downloaded or otherwise exported or re-exported (i) into (or to a
national or resident of) any country that is subject to a U.S. Government embargo or has
been designated by the U.S.
Government as a “terrorist supporting” country; or (ii) to anyone on the U.S. Treasury
Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s
Table of Deny Orders. By downloading or using the Software and/or Documentation, you are
agreeing to the foregoing and you represent and warrant that you (a) are not located in,
under the control of, or a national or resident of any such country or on any such list, (b) are
not listed on any U.S. Government list of prohibited or restricted parties, and (c) you agree to
comply with all United States and foreign laws related to use of the Mobile Software and
other Company Services.
g. Users Outside the U.S. If you are using the Mobile Software outside the U.S.A.,
then the following shall apply: (a) you confirm that this Agreement and all related
documentation is and will be in the English language (please see Section 25 regarding any
translations that are provided for your convenience); (b) you are responsible for complying
with any local laws in your jurisdiction which might impact your right to import, export or use
the Mobile Software or any services accessed or used in connection with the Mobile
Software, and you represent that you have complied with any regulations or registration
procedures required by applicable law to make this license enforceable.
h. Injunctive Relief. You acknowledge and agree that your breach or threatened
breach of this Section 16 shall cause the Company irreparable damage for which recovery
of money damages would be inadequate and that the Company therefore may seek timely
injunctive relief to protect its rights under this Agreement in addition to any and all other
remedies available at law or in equity.
17. FREE TRIALS AND PROMOTIONS
From time to time, we may offer free trials or other promotions (a “Promotion”). As an
example, we may offer promotions that provide free subscriber-level access to the Services
for a certain period of time. YOU MUST CANCEL YOUR SUBSCRIPTION (IN
ACCORDANCE WITH SECTION 13(d) ABOVE) BEFORE THE END OF THE PROMOTION
PERIOD IN ORDER TO AVOID BEING AUTOMATICALLY CHARGED FOR
SUBSCRIPTION FEES. Furthermore, and for example, we may provide you with our virtual
currency without charge. Any such virtual currency is subject to the terms of our Virtual
Goods and Currency Terms of Use which can be found here. Additional Terms applicable to
any Promotions may be provided.
18. DISCLAIMERS
THE COMPANY PROVIDES THE SITES, THE PROPRIETARY MATERIALS AND THE
SERVICES ON AN “AS
IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED UNDER
APPLICABLE LAW,
WE EXPRESSLY DISCLAIM ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND,
WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE
SERVICES (INCLUDING ALL
PROPRIETARY MATERIALS AND OTHER INFORMATION AND CONTENT
CONTAINED THEREIN), INCLUDING ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE
OR NON-INFRINGEMENT.
THE COMPANY DOES NOT REPRESENT OR WARRANT THAT (A) YOUR USE OF THE
SERVICES WILL BE
SECURE, UNINTERRUPTED, COMPLETE, ALWAYS AVAILABLE, ERROR-FREE OR
WILL MEET YOUR
REQUIREMENTS, (B) ANY DEFECTS IN THE SERVICES WILL BE CORRECTED OR (C)
THE SERVICES ARE
FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE COMPANY DISCLAIMS
LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, THE
CONNECTIVITY AND AVAILABILITY OF THE SERVICES OR THE DELIVERY OF ANY
MESSAGES.
THE COMPANY DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF OR
SCREEN THE
PERSONS SUBSCRIBING TO OR USING THE SERVICES, NOR DOES IT HAVE ANY
OBLIGATION TO
MONITOR THE USE OF THE SERVICES BY OTHER USERS OF THE COMMUNITY.
THEREFORE, THE
COMPANY DISCLAIMS ALL LIABILITY FOR YOUR INTERACTIONS WITH AND THE
CONDUCT OF OTHER USERS AND FOR IDENTITY THEFT OR ANY OTHER MISUSE OF
YOUR IDENTITY OR INFORMATION.
THE COMPANY DOES NOT: (i) GUARANTEE THE ACCURACY, COMPLETENESS OR
USEFULNESS OF ANY
INFORMATION ON THE SERVICES, OR (ii) ADOPT, ENDORSE OR ACCEPT
RESPONSIBILITY OR LIABILITY
FOR THE CONDUCT OF ANY USERS OR MEMBERS OR FOR THE ACCURACY OR
RELIABILITY OF ANY
OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY OTHER THAN THE
COMPANY. UNDER NO
CIRCUMSTANCES WILL THE COMPANY BE RESPONSIBLE FOR ANY LOSS, DAMAGE
OR HARM OF ANY KIND RESULTING FROM ANY USER CONDUCT OR FROM
ANYONE’S RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE
SERVICES, OR TRANSMITTED TO OR BY ANY USERS.
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF
IMPLIED WARRANTIES AND TERMS IN CONTRACTS WITH CONSUMERS AND AS A
RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
19. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE
COMPANY, ITS AFFILIATES,
DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL,
CONSEQUENTIAL OR
INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF
PROFITS OR LOSS OF
DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED
TO
NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATING TO THE USE OF OR
INABILITY TO USE
THE SERVICES, OR THE PROPRIETARY MATERIALS CONTAINED IN OR ACCESSED
THROUGH THE
SERVICE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR
RESULTING FROM
RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM THE COMPANY, OR
THAT RESULTS
FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL,
ERRORS, DEFECTS,
VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF
PERFORMANCE, WHETHER
OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT,
DESTRUCTION OR
UNAUTHORIZED ACCESS TO THE COMPANY’S RECORDS, PROGRAMS OR
SERVICES. UNDER NO
CIRCUMSTANCES WILL THE COMPANY’S AGGREGATE LIABILITY, IN ANY FORM OF
ACTION
WHATSOEVER IN CONNECTION WITH THIS AGREEMENT OR THE USE OF THE
SERVICES, EXCEED THE GREATER OF (1) THE AGGREGATE AMOUNT OF FEES FOR
PAID SERVICES PAID BY YOU DURING THE IMMEDIATELY PRECEDING SIX MONTHS
OR (2) $50.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL
THE COMPANY BE
LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT,
GENERAL, SPECIAL,
COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR
RELATING TO THE
CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE
SERVICES, INCLUDING
WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, IDENTITY THEFT
AND/OR ANY OTHER
DAMAGES RESULTING FROM COMMUNICATIONS, MEETINGS OR OTHER
INTERACTIONS WITH
OTHER USERS OF THE SERVICES. THIS INCLUDES ANY CLAIMS, LOSSES OR
DAMAGES ARISING FROM THE CONDUCT OF USERS WHO HAVE REGISTERED
UNDER FALSE PRETENSES OR WHO ATTEMPT TO DEFRAUD OR HARM YOU.
SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE LIMITATION OR
EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT
THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU.
20. GOVERNING LAW AND ARBITRATION; WAIVER; INDEMNIFICATION
Our goal is to resolve any disputes amicably and quickly and we encourage you to contact
us and explain your complaint as soon as it arises.
a. Governing Law. This Agreement shall be governed by the internal substantive laws
of the State of New York, without respect to its conflict of laws principles. Notwithstanding
the preceding sentences with respect to the substantive law, the interpretation and
enforcement of, and proceedings pursuant to, Section 20(b) of this Agreement shall be
governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16), and we expressly recognize and
acknowledge the continuing applicability of our right to contract for binding arbitration and
waiver of any right to participate in a class Action or jury trial, as set out in Section 20(b)
hereof. The application of the United Nations Convention on Contracts for the International
Sale of Goods is expressly excluded. You agree that any claim or dispute you may have
against the Company must be resolved in a federal or state court located in New York, NY,
USA or as described in the Arbitration provision below. Both you and the Company retain
the right to seek injunctive or other equitable relief in a court of competent jurisdiction to
prevent the actual or threatened infringement, misappropriation or violation of copyrights,
trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set
forth in the Arbitration provision below including any provisional relief required to prevent
irreparable harm. You agree that the state or federal courts located in New York, NY, USA
are the exclusive forum for any proceeding to confirm or vacate an arbitration award
rendered in accordance with Section 20(b) hereof (or for any proceeding seeking relief in aid
of such arbitration) or in the event that the Arbitration provision below is for any reason held
to be unenforceable.
b. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE
PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU
CAN SEEK RELIEF FROM THE COMPANY. For any dispute with the Company, you agree
to first contact us within 30 days of when the dispute arises at [email protected] and attempt
to resolve the dispute with us informally. In the unlikely event that the Company has not
been able to informally resolve a dispute it has with you within 60 days, we each agree to
resolve any claim, dispute, or controversy (excluding any claims for injunctive or other
equitable relief described in Section 20(a)) arising out of or in connection with or relating to
the Services or this Agreement, or the breach or alleged breach thereof, including disputes
related to the interpretation, applicability, enforceability or formation of this agreement to
arbitrate
(collectively, “Claims”), by binding arbitration by the Judicial Mediation and Arbitration
Services (“JAMS”) under the JAMS Optional Expedited Procedures then in effect, except as
provided herein. JAMS may be contacted at www.jamsadr.com. You will have the right to
participate in the selection of the arbitrator, who may be selected by mutual agreement of the
parties or by the procedures provided by JAMS if the parties are unable to agree on an
arbitrator. Unless the parties agree otherwise, the arbitrator shall be an attorney licensed to
practice in the location where the arbitration proceedings will be conducted or a retired
federal or state judicial officer who presided in the jurisdiction where the arbitration will be
conducted. The arbitration will be conducted in New York, NY, USA (or the nearest office to
Santa Clara County), unless you request a hearing in your hometown area or you and the
Company agree otherwise. The language to be used in the arbitral proceedings will be
English, unless otherwise agreed by the parties. Payment of all filing, administration and
arbitrator fees and costs will be governed by JAMS rules, but if you are unable to pay any of
them, the Company will pay them for you. The award rendered by the arbitrator may include
your costs of arbitration, your reasonable attorneys’ fees and your reasonable costs for
expert and other witnesses, and any judgment on the award rendered by the arbitrator may
be entered in any court of competent jurisdiction. The Company will not seek its attorneys’
fees or costs in arbitration unless the arbitrator determines your claims or defenses are
frivolous. Nothing in this Section shall prevent either party from seeking injunctive or other
equitable relief from the courts as necessary to prevent the actual or threatened
infringement, misappropriation, or violation of that party’s data security, intellectual property
rights, or other proprietary rights. You may sue in a small claims court of competent
jurisdiction without first engaging in arbitration, but this does not absolve you of your
commitment to engage in the informal dispute resolution process. If your claim does not
exceed $10,000, then you may choose whether the arbitration will be conducted solely on
the basis of the documents that you and the Company submit to the arbitrator, through a
telephonic hearing, or by an in-person hearing.
c. CLASS ACTION AND JURY TRIAL WAIVER. YOU AND THE COMPANY AGREE
THAT ANY AND ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL
CAPACITY, AND NOT AS A PLAINTIFF OR
CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION,
PRIVATE ATTORNEY
GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER
APPLIES TO CLASS
ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT
CONSOLIDATE
MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS
AGREEMENT, YOU
AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO
PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY
GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING.
d. Indemnity. You agree to defend, indemnify and hold the Company, its subsidiaries
and affiliates, and each of their directors, officers, managers, agents, contractors, partners
and employees harmless from any loss, liability, claim, damages, costs, debts, expenses or
demand, including reasonable attorney’s fees, due to or arising from (i) your use of or
access to the Services, including any data or content transmitted or received by you, or your
inability to use the Services; (ii) any claim or damages that arise as a result of any of your
User Content or any User Content that is submitted via your account; (iii) your conduct in
connection with the Services or our users, (iv) your violation of any of the terms of this
Agreement, including without limitation your breach of any of the representations and
warranties above, (v) your violation of any rights of a third party, including without limitation
any right of privacy or intellectual property rights; (vi) any other party’s access and use of the
Services with your unique username, password or other appropriate security code or (viii)
your violation of any applicable laws, rules or regulations.
e. Severability. If any clause within this Section 20 is found to be illegal or
unenforceable, that clause will be severed from this section and the remainder of the section
will be given full force and effect, except that in the event of unenforceability of the universal
Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
21. TERMINATION
Unless otherwise provided, this Agreement is effective upon your first use of the Services
and shall remain in effect until it is terminated in accordance with the terms of this
Agreement.
a. Termination by the Company. Notwithstanding anything to the contrary in this
Agreement, the Company may suspend, deactivate or terminate your account and your right
to use the Services and may block or prevent your access to and use of the Services at any
time in its sole discretion, for any reason or no reason, without explanation and without
notice (including without limitation blocking users or Members from certain IP addresses).
We also reserve the right to remove or block access to your account information, User
Content or data from our Services and any other records at any time at our sole discretion.
In the event that we determine that your access to any of the Services is terminated or
suspended for cause, such as due to any breach of this Agreement, flagged conduct or
content, third party complaints or the implementation of our repeat infringer policy, you agree
that all fees then paid to the Company by you will be nonrefundable, except as otherwise
provided by law, and all outstanding or pending payments under the terms of your
subscription will immediately be due and payable. All decisions as to the refundability of the
fees are in the Company’s sole discretion. Notwithstanding the foregoing, you may dispute
any refunds of fees pursuant to Section 20 of this Agreement.
b. Termination by You. In addition to any right to cancel your subscription pursuant to
Section 22, below, you may deactivate or terminate your account at any time, for any or no
reason, by accessing the “settings” page of your account or by contacting us as described
above. Except as otherwise provided by law or under this Agreement, you will not be entitled
to any refund of the fees you have paid to the Company and all outstanding or pending
payments under the terms of your subscription will immediately be due and payable.
c. Survival. After your account is suspended, deactivated or terminated, all terms that
by their nature may survive termination of this Agreement shall be deemed to survive such
termination, including without limitation Sections 18, 19, 20 and 24.
22. CANCELLATION RIGHTS
In addition to the cancellation procedure set forth in Section 13(d) above, if you are a
Company subscriber in one of the following states or provinces (as determined by the zip
code / postal code you use at the time of your subscription), you have the right to cancel
your subscription in accordance with the applicable terms described below for such state or
province. The date of your subscription is the date that you sign up for the subscription
through our Services. Upon cancellation of your subscription in accordance with this Section
22, your subscription benefits will terminate immediately.
a. Arizona. CANCELLATION. You have the right to cancel your subscription
and/or upgrade(s) (including upgrades to a subscription and upgrades without a
subscription), without any penalty or obligation, within three business days,
excluding Sundays and holidays, following the date you purchased a subscription
and/or upgrade(s). A signed written notice of cancellation (which includes your
Company user name and the email address used to register for the Services) must be
sent by certified mail to JSwipe Customer Care Smooch Labs, Inc., Attn: Customer
Service, 10808 S River Front Parkway, Suite 398 South Jordan, UT 84095, or
personally delivered to our offices at that address. Monies paid pursuant to any
subscription and/or upgrade(s) for dating services shall be refunded within 30 days of
receipt of the notice of cancellation.
b. California. CANCELLATION. You have the right to cancel your subscription
and/or upgrade(s) (including upgrades to a subscription and upgrades without a
subscription), without any penalty or obligation, at any time until midnight of the third
business day after the day on which you purchased a subscription and/or upgrade(s).
To cancel your subscription and/or upgrade(s), mail or deliver a signed and dated
notice to JSwipe Customer Care Smooch Labs, Inc., Attn: Customer Service, 10808
S River Front Parkway, Suite 398 South Jordan, UT 84095, write to us by following the
instructions here or send a telegram which states that you are cancelling your
subscription and/or upgrade(s) or words of a similar effect. Include your Company
user name and the email address used to register for the Services with such notice.
Notice of cancellation if given by mail, is effective when deposited in the mail properly
addressed with postage prepaid. All moneys paid pursuant to any subscription and/or
upgrade(s) for dating services shall be refunded within 10 days of receipt of the notice
of cancellation.
a. c. Colorado. CANCELLATION. YOU, THE BUYER, MAY CANCEL THIS
CONTRACT, WITHOUT ANY PENALTY OR OBLIGATION, AT ANY TIME PRIOR TO
MIDNIGHT OF THE THIRD BUSINESS DAY
FOLLOWING THE DATE OF THIS CONTRACT, EXCLUDING SUNDAYS AND
HOLIDAYS. NOTICE OF CANCELLATION NEED NOT TAKE A PARTICULAR FORM
AND IS EFFECTIVE IF IT INDICATES YOUR
DESIRE TO NOT BE BOUND BY THIS CONTRACT. TO CANCEL THIS CONTRACT,
SEND AN E-MAIL
THAT STATES THAT YOU, THE BUYER, ARE CANCELING THIS CONTRACT, OR
WORDS OF SIMILAR
EFFECT. SEND THIS NOTICE THROUGH: https://support.jswipeapp.com/hc/en-
us/requests/new
d. Connecticut. NOTICE OF CANCELLATION. YOU MAY CANCEL THIS
CONTRACT, WITHOUT ANY PENALTY OR OBLIGATION, WITHIN THREE BUSINESS
DAYS AFTER YOUR RECEIPT OF THIS
CONTRACT BY MAILING THIS SIGNED AND DATED NOTICE OF CANCELLATION BY
CERTIFIED OR
REGISTERED UNITED STATES MAIL TO THE SELLER AT THE FOLLOWING
ADDRESS: JSWIPE
CUSTOMER CARE SMOOCH LABS, INC., ATTN: REFUND REQUEST, 10808 S River
Front Parkway, Suite 398 South Jordan, UT 84095. IF YOU CANCEL, ANY PAYMENTS
MADE BY YOU UNDER THE CONTRACT WILL
BE RETURNED WITHIN TEN BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER
OF YOUR CANCELLATION NOTICE. INCLUDE YOUR COMPANY USER NAME AND
THE EMAIL ADDRESS USED TO REGISTER FOR THE SERVICES WITH SUCH NOTICE.
e. Illinois. CANCELLATION. You have the right to cancel your subscription
and/or upgrade(s) (including upgrades to a subscription and upgrades without a
subscription), without any penalty or obligation, within three business days after the
first business day after the date you purchased a subscription and/or upgrade(s). A
written notice of cancellation (which includes your Company user name and the email
address used to register for the Services) must be sent by certified or registered mail
to JSwipe Customer Care Smooch Labs, Inc., Attn: Customer Service, 10808 S River
Front Parkway, Suite 398 South Jordan, UT 84095. Monies paid pursuant to any
subscription and/or upgrade(s) for dating services shall be refunded within 30 days of
receipt of the notice of cancellation.
f. Iowa. Notice of Cancellation. You have the right to cancel your subscription
and/or upgrade(s) (including upgrades to a subscription and upgrades without a
subscription), without any penalty or obligation, at any time prior to midnight of the
third business day after the date you purchased a
subscription and/or upgrade(s). A signed and dated written notice of cancellation
(which includes your Company user name and the email address used to register for
the Services) must be mailed or delivered to JSwipe Customer Care Smooch Labs,
Inc., Attn: Refund Request, 10808 S River Front Parkway, Suite 398 South Jordan, UT
84095or send a telegram. Monies paid pursuant to any subscription and/or upgrade(s)
for dating services shall be refunded within 10 business days of receipt of the notice
of cancellation.
g. Minnesota. MEMBERS’ RIGHT TO CANCEL. If you wish to cancel this
contract, you may cancel by delivering or mailing a written notice to us. The notice
must say that you do not wish to be bound by the contract and must be delivered or
mailed before midnight of the third business day after you purchased a subscription
and/or upgrade(s). The notice must be delivered or mailed to: JSwipe Customer Care
Smooch Labs, Inc., Attn: Refund Request, 10808 S River Front Parkway, Suite 398
South Jordan, UT 84095. If you cancel, we will return, within ten days of the date on
which you give notice of cancellation, any payments you have made. Include your
Company user name and the email address used to register for the Services with
such notice.
h. New York. NOTICE OF CANCELLATION. YOU MAY CANCEL THIS CONTRACT,
WITHOUT ANY PENALTY OR OBLIGATION, WITHIN THREE (3) BUSINESS DAYS
AFTER THE DATE OF THIS CONTRACT BY MAILING THIS SIGNED AND DATED
NOTICE OF CANCELLATION BY CERTIFIED OR REGISTERED UNITED STATES MAIL
TO THE SELLER AT JSWIPE CUSTOMER CARE SMOOCH LABS, INC., ATTN:
REFUND REQUEST, 10808 S River Front Parkway, Suite 398 South Jordan, UT 84095.
IF YOU CANCEL, ANY
PAYMENTS MADE BY YOU UNDER THE CONTRACT WILL BE RETURNED WITHIN
TEN (10) BUSINESS
DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR CANCELLATION NOTICE.
INCLUDE YOUR COMPANY USER NAME AND THE EMAIL ADDRESS USED TO
REGISTER FOR THE SERVICES WITH SUCH NOTICE.
i. North Carolina. NOTICE OF CANCELLATION. You may cancel your
subscription and/or upgrade(s) (including upgrades to a subscription and upgrades
without a subscription) at any time prior to midnight of the third business day after
the date you purchased a subscription and/or upgrade(s). To cancel your
subscription and/or upgrade(s), mail or deliver a written notice of cancellation (which
includes your Company user name and the email address used to register for the
Services) to JSwipe Customer Care Smooch Labs, Inc., Attn: Refund Request,
10808 S River Front Parkway, Suite 398 South Jordan, UT 84095 no later than
midnight of the third business day after the date you purchased a subscription and/or
upgrade(s). Notice of cancellation, if given by mail, is given when it is deposited in the
United States mail properly addressed and postage prepaid. Payments made
pursuant to any subscription and/or upgrade(s) for dating services shall be refunded
within 30 days after the notice of cancellation is given.
l. Ohio. NOTICE OF CANCELLATION. You may cancel your subscription and/or
upgrade(s) (including upgrades to a subscription and upgrades without a
subscription) for any reason, without any penalty or obligation, until midnight of the
third business day after the date you purchased a subscription and/or upgrade(s), or
if the Services are not available when you purchased a
subscription and/or upgrade(s), you may cancel your subscription and/or upgrade(s)
prior to midnight of the seventh business day after the date on which you receive
your first Service. A written notice of cancellation (which includes your Company user
name and the email address used to register for the Services) must be sent by
certified mail (return receipt requested) or delivered to JSwipe Customer Care
Smooch Labs, Inc., Attn: Refund Request, 10808 S River Front Parkway, Suite 398
South Jordan, UT 84095, or written to us by following the instructions here or by a
telegram. Notice of cancellation by certified mail is effective upon the date of post
marking. Delivery is effective when delivered to the address above. When notice is
sent by electronic mail, notice is effective when the electronic mail is sent to the
Company’s electronic mail address.
k. Quebec, Canada. NOTICE OF CANCELLATION. You may cancel your
subscription at any time. If you wish to cancel your subscription and claim a refund
for the unused portion of the balance of your subscription term, you may send a
signed and dated copy of your Notice of Cancellation to
JSwipe Customer Care Smooch Labs, Inc., Attn: Refund Request, 10808 S River
Front Parkway, Suite 398 South Jordan, UT 84095. If you cancel under this provision,
the Company will be entitled to retain a
cancellation indemnity calculated in accordance with the Quebec Consumer
Protection Act. Any payments made by you for the unused portion of your
subscription (after deducting the cancellation indemnity) will be returned within ten
(10) business days following receipt of your cancellation notice. You must include
your Company user name and the email address used to register for the Services with
your cancellation notice.
l. Rhode Island. NOTICE OF CANCELLATION. You may cancel your
subscription and/or upgrade(s) (including upgrades to a subscription and upgrades
without a subscription) at any time prior to midnight of the third business day after
you purchased a subscription and/or upgrade(s) by mailing, by certified or registered
United States mail, a signed and dated copy of this Notice of Cancellation at JSwipe
Customer Care Smooch Labs, Inc., Attn: Refund Request, 10808 S River Front
Parkway, Suite 398 South Jordan, UT 84095. If you cancel under this provision, any
payments made by you will be returned within ten (10) business days following
receipt by the seller of your cancellation notice. Include your Company user name
and the email address used to register for the Services with such notice.
m. Wisconsin. CANCELLATION AND REFUNDS. RIGHT TO CANCEL. You are
permitted to cancel your subscription and/or upgrade(s) (including upgrades to a
subscription and upgrades without a subscription) until midnight of the 3rd day after
the date on which you signed the contract. If within this time period you decide you
want to cancel this contract, you may do so by notifying the Company by any writing
mailed or delivered to the Company at the address shown on the contract, within the
previously described time period. If you do so cancel, any payments made by you will
be refunded within 21 days after notice of cancellation is delivered, and any evidence
of any indebtedness executed by you will be canceled by the Company and
arrangements will be made to relieve you of any further obligation to pay the same.
Include your Company user name and the email address used to register for the
Services with such notice.
23. STATE SPECIFIC PROVISIONS
If you are a Company subscriber in one of the following states (as determined by the zip
code you use at the time of your subscription), the provision(s) listed below for such state will
apply. Unless otherwise stated, you may exercise any rights applicable to you by providing
written notice to us (which includes your Company user name and the email address used to
register for the Services) by mail at JSwipe Customer Care Smooch Labs, Inc., Attn:
Refund Request, 10808 S River Front Parkway, Suite 398 South Jordan, UT 84095.
a. California. The following additional provisions(s) apply if you are a California subscriber
(as determined by the zip code you use at the time of your subscription):
i. If by reason of death or Disability (as defined below) you are unable to receive all
services for which you have contracted, you and your estate may elect to be relieved of the
obligation to make payments for the Services other than those received before death or the
onset of disability. If you have prepaid any amount for Services, so much of the amount
prepaid that is allocable to Services that you have not received shall be promptly refunded to
you and your representative. “Disability” means a condition which precludes you from
physically using the Services specified in the contract during the term of disability and the
condition is verified in writing by a physician designated and remunerated by you. The
written verification of the physician shall be presented to the Company. If the physician
determines that the duration of the disability will be less than six months, we may extend the
term of the contract for a period of six months at no additional charge to you in lieu of
cancellation.
ii. You acknowledge that the Services are accessible online and are offered in many
locations internationally and that therefore, there is no physical dating service office. Thus,
you acknowledge and agree that for purposes of California Civil Code¤ 1694.3(b), the term
“Dating Service Office” shall mean any location where the Services are available. If you
relocate your primary residence further than 50 miles from the Company’s Dating Service
Office and you are unable to transfer the contract to a comparable facility, you may elect to
be relieved of the obligation to make payment for services, other than those received prior to
that relocation. Upon such election, if you have prepaid any amount for dating services, so
much of the amount prepaid that is allocable to services that you have not received shall be
promptly refunded to you If you elect to be relieved of further obligation pursuant to this
subdivision, the Company may charge you a fee of $100.00 or, if more than half the life of
the contract has expired, a fee of $50.00, not to exceed the amount of the refund to which
you are entitled. Such fee shall be deducted from any refund which the Company is required
to make to you.
a. b.Colorado. The following additional provisions(s) apply if you are a Colorado
subscriber (as determined by the zip code you use at the time of your subscription):
i. If by reason of death or disability you are unable to receive all services for which
you have contracted, you and your estate may elect to be relieved of the obligation to make
payments for services other than those received before death or the onset of Disability,
except as provided in subsection (ii) of this section, so long as you and your estate provide
written verification of the disability. If you have prepaid any amount for services, so much of
the amount prepaid that is allocable to services that you have not received shall be promptly
refunded to you or your representative.
ii. If the physician verifying your disability determines that the duration of the disability
will be less than six months, we may extend the term of the contract for a period of six
months at no additional charge in lieu of cancellation.
iii. You acknowledge that the Services are accessible online and are offered in many
locations internationally and that therefore, there is no physical dating service office. Thus,
you acknowledge and agree that for purposes of Colorado Revised Statute § 6-1-731.1(e),
the term “Dating Service Office” shall mean any location where the Services are available. If
you relocate your primary residence further than 50 miles from the Company’s Dating
Service Office and you are unable to transfer the contract to a comparable facility, you may
elect to be relieved of the obligation to make payment for services, other than those received
prior to that relocation. Upon such election, if you have prepaid any amount for dating
services, so much of the amount prepaid that is allocable to services that you have not
received shall be promptly refunded to you If you elect to be relieved of further obligation
pursuant to this subsection. We may charge you a fee of $100.00 or, if more than half the
life of the contract has expired, a fee of $50.00, not to exceed the amount of the refund to
which you are entitled. Such fee shall be deducted from any refund which we are required
to make to you.
c. Illinois. The following additional provision(s) apply if you are an Illinois subscriber (as
determined by the zip code you use at the time of your subscription):
i. You acknowledge that the Services are accessible online and are offered in many
locations internationally and that therefore, there is no physical dating service office. Thus,
you acknowledge and agree that for purposes of the Illinois Dating Referral Services Act, the
location of an
“enterprise” shall mean any location where the Services are available. If you relocate your
primary residence to a location that is more than 25 miles from where our Services are
comparably offered, you may cancel this contract and shall be liable only for that portion of
the charges allocable to the time before reasonable evidence of the relocation is presented
to the Company plus a fee equal to the lesser of (1) 10% of the unused balance or (2) $50.
Such fee shall be deducted from any refund which the Company is required to make to you.
ii. If by reason of death you are unable to receive all services for which you have
contracted, your estate may elect to be relieved of the obligation to make payments for the
Services other than those received before death. We shall have the right to require and
verify reasonable evidence of the death.
d. New York. The following additional provisions(s) apply if you are a New York subscriber
(as determined by the zip code you use at the time of your subscription):
i. If you subscribe for any Paid Services, the Company will provide a minimum of one
match to you each month. In the event we do not provide at least one match for two or more
successive months, you shall have the option to cancel this agreement by notifying us in
writing at the address stated in this Agreement and to receive a refund of all monies paid
pursuant to the cancelled contract; provided, however, that the Company shall retain as a
cancellation fee 15% of the cash price or a pro rata amount for the number of referrals
furnished to you, whichever is greater. This shall be your sole remedy for failure to provide
the minimum number of referrals.
ii. Except in connection with any merger, sale of company assets, reorganization,
financing, change of control or acquisition of all or a portion of the Company’s business by
another company or third party or in the event of bankruptcy, the Company will not without
the prior written consent of the purchaser sell, assign or otherwise transfer for business or
for any other purpose to any person any information and material of a personal or private
nature acquired from a purchaser directly or indirectly including but not limited to answers to
tests and questionnaires, photographs or background information. You acknowledge and
agree that if you post any information, including photographs, to the Services for posting on
your profile or other areas of the Services, such information will be publicly accessible, and
you are consenting to the display of such information on the Services.
iii. If you permanently relocate your primary residence further than 50 miles from any
area in which the Company offers the Services, you may elect to terminate your subscription
by notifying us in writing at JSwipe Customer Care Smooch Labs, Inc., Attn: Refund
Request, 10808 S River Front Parkway, Suite 398 South Jordan, UT 84095. Upon such
election, your subscription benefits will cease and you will receive a prorated refund of the
Subscription Fee paid, less a termination fee of $50.00, not to exceed the amount of the
refund to which you are entitled.
iv. You have the right to place your subscription on hold for a period of up to one year
at any time. To do this, you must notify the Company in writing (which includes your
Company user name and the email address used to register for the Services) at JSwipe
Customer Care Smooch Labs, Inc., Attn: Refund Request, 10808 S River Front Parkway,
Suite 398 South Jordan, UT 84095.
e. Ohio. The following additional provision(s) apply if you are an Ohio subscriber (as
determined by the zip code you use at the time of your subscription):
i. If by reason of death or disability you are unable to receive the benefits from the
Services, the contract shall be proportionally divided by all of the days in which the Services
were made available to you as part of the contract offering, and you shall be liable for
payments only for that portion of the contract that can be attributed to the period prior to your
actual death or disability, exclusive of any period of time in which the Services were made
available to you free of charge as part of the contract offering, and within 30 days after
receiving notice of your death or disability, we shall refund your representative or you the
amount paid in excess of the proportional amount. We shall have the right to require and
verify reasonable evidence of the death or disability.
ii. If you relocate your residence 25 miles or more from any area in which the
Company offers the Services, you may elect to terminate your subscription by notifying us in
writing at JSwipe Customer Care Smooch Labs, Inc., Attn: Refund Request, 10808 S
River Front Parkway, Suite 398 South Jordan, UT 84095 of your intention to relocate and
requesting that the contract be terminated. Upon such election, your subscription benefits
will cease and you will receive a prorated refund of the Subscription Fee paid.
24. MISCELLANEOUS
This Agreement, and any rights and licenses granted hereunder, may not be transferred or
assigned by you, but may be assigned by the Company without restriction. Any attempted
transfer or assignment in violation hereof shall be null and void. You agree that this
Agreement, together with the Privacy Policy and any Additional Terms, contains the entire
agreement between you and the Company regarding the use of the Services and
supersedes all prior agreements and understandings (including without limitation any prior
versions of this Agreement), except to the extent that the parties have entered into a
separate written agreement applicable to the Services that expressly governs over this
Agreement. If any provision, or any portion thereof, of this Agreement is held illegal, void,
invalid or unenforceable, such provision will be changed and interpreted to accomplish the
objectives of the provision to the greatest extent possible under any applicable law and the
remaining provisions will continue in full force and effect, except that in the event of
unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration
agreement shall be unenforceable. The failure of the Company to exercise or enforce any
right or provision in this Agreement shall not operate as a waiver of such right or provision.
Other than any affiliate of the Company, there are no third-party beneficiaries to this
Agreement and no third party who is not a party to this Agreement shall have any right to
enforce any term of this Agreement. Smooch Labs, Inc. is a corporation organized under the
laws of the State of Delaware, USA (file number 5459991).
25. LANGUAGE OF THE AGREEMENT
The language of this Agreement is English. Where the Company has provided a translation
of the English version of this Agreement, you agree that the translation is provided for your
convenience only and that the English language version of this Agreement will govern your
relationship with the Company. If there is any contradiction between what the English
language version of this Agreement says and what a translation says, then the English
language version will take precedence.
26. SPECIAL NOTICE TO CANADIAN MEMBERS
This Terms of Use Agreement applies to our Canadian Members with the following
modifications.
Section 20(a) (Arbitration) does not apply to Canadian Members. Section 20(b) (Class Action
and Jury Trial Waiver) does not require a Canadian Member to waive a right to a class
action proceeding. Notwithstanding paragraph (a) of Section 16(e) (Language) and Section
25 (Language), the French language version of this Terms of Service Agreement will govern
for Quebec Members. For Quebec Members, Section 18 (Disclaimers) does not affect the
legal warranty in Quebec and Section 18 (Limitation of Liability) does not excuse the
Company from its own acts. Notwithstanding Section 20, this Agreement will be governed by
the laws of the Province of Quebec for Quebec Members. References in this Section 26 to a
Canadian Member or to a Quebec Member will be determined by the postal code of the
Member used at the time of subscription.
Virtual Goods and Currency Terms of Use
Last Revised: March 24, 2020
PLEASE READ THESE VIRTUAL GOODS AND CURRENCY TERMS OF USE
CAREFULLY. BY MAKING A
PURCHASE OR USING OUR VIRTUAL PRODUCTS, SERVICES OR CURRENCY, YOU
AGREE TO BE BOUND BY THESE TERMS AND ALL TERMS INCORPORATED BY
REFERENCE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT
PURCHASE OR USE OUR VIRTUAL PRODUCTS, SERVICES OR CURRENCY.
Certain virtual products and services (“Virtual Goods”) and virtual currency (“Coins”) may be
made available to you from time to time by Smooch Labs, Inc. or its subsidiaries or affiliated
companies (collectively, “us”, “we” or the “Company”) through our websites, products,
applications, which include mobile applications and applications available on social
networking sites and other platforms, and services (collectively, the “Services”). Your
purchases and uses of Virtual Goods and Coins through our Services are governed by these
Virtual Goods and Currency Terms of Use (“VGC
Terms of Use”) and by the Company Terms of Use, which is incorporated herein by
reference. These VGC Terms of Use set out the legally binding terms for your purchase and
use of our Virtual Goods and Coins and may be modified by us from time to time by posting
the revised VGC Terms of Use on the applicable Service. Such changes shall apply to any
purchases made after such changes are posted. Therefore, you should review these VGC
Terms of Use prior to each purchase so you will understand the terms applicable to such
transaction.
If you have any questions about these VGC Terms of Use, you may contact us by writing to
us at: JSwipe Customer Care Smooch Labs, Inc., Attn: Virtual Goods Terms, 10808 S
River Front Parkway, Suite 398 South Jordan, UT 84095.
1. PURCHASES
To purchase any of our virtual products or services, you must be a registered user of our
Services and comply with these VGC Terms of Use (including the Company Terms of Use).
You acknowledge that you are responsible for maintaining the security of, and restricting
access to, your account and password, and you agree to accept responsibility for all
purchases and other activities that occur under your account. We reserve the right to refuse
or cancel orders or terminate accounts at any time in our sole discretion.
2. PAYMENT
By submitting an order for our Virtual Goods or Coins through our Services, you authorize
the Company, or its designated payment processors, to charge the account you specify for
the purchase amount. All prices we show on our Services are subject to change without
notice. When you provide your payment information, including any credit card number, to us
or our designated payment processors, you authorize us or our designated payment
processors to store payment information and other related information.
3. TAXES
You will be responsible for any applicable sales or use taxes, duties, or other governmental
taxes or fees payable in connection with your purchase of Virtual Goods or Coins. If you do
not pay such sales or other tax or fees on a transaction, you will be responsible for such
taxes or fees in the event that they are later determined to be payable on such purchases,
and we reserve the right to collect such taxes or other fees from you at any time.
4. COINS
In our sole discretion, we may offer you the opportunity to obtain and redeem Coins for use
with our Services. We may charge fees for the right to use Coins, or we may distribute the
Coins without charge, each in our sole discretion. When you redeem Coins, we will redeem
Coins that you have purchased before redeeming Coins that you have obtained on a
promotional basis, or otherwise without charge. We have no obligation to continue offering
any feature or function through the Services, including any feature or function that enables
the use or redemption of Coins.
Your Coins will be stored in an account for you. The Coins may be redeemed solely by the
Company through our Services, cannot be transferred to any other user or third party,
cannot be redeemed for cash and are non-refundable except (i) as required by law or (ii) at
our sole and absolute discretion. We may further restrict your ability to redeem your Coins
based on your place of residence. For clarification, although you may buy Coins via mobile
services, the Coins are not redeemable for content or services offered by any carrier.
While the Coins you purchase do not expire, you acknowledge and agree that if your
account becomes Inactive (as defined below) or is deactivated (as described below), we
may, without further notice to you, redeem all paid Coins remaining in your account for any
Virtual Goods (as defined below) we select, in our sole discretion, and distribute such Virtual
Goods, as applicable, to your “friends” (and, if you have no “friends” to any other users that
we may identify, in our sole discretion). For purposes of this Section 4, the term “Inactive
means that, based on our records: (a) for a period of two (2) years, or more, you have not
logged into your Company account; or (b) we have been unable to reach you to verify that
you intend to continue use of your account. Coins that are obtained on a promotional basis,
or otherwise without charge, may expire, be redeemed or removed from your account or be
subject to other limitations at our sole discretion, including without limitation the actions
described above if your account becomes inactive or is deactivated.
If you deactivate your Company account with our platform pursuant to the Company Terms
of Use, your ability to redeem Coins may be terminated, without any right to refund or any
other compensation for you. When we cancel or terminate access to your Coins account
balance for violating these VGC Terms of Use or the Company Terms of Use, your right to
use your Coins account balance immediately ceases.
Further, we may suspend or otherwise limit your access to your Coins if we suspect, in our
sole discretion, fraudulent, abusive or unlawful activity associated with your account. When
we suspend or limit access to your Coins account balance, your right to use your Coins
account balance immediately ceases.
We may limit your use of the Coins service by applying limits to: the number of Coins you
may have credited to your Coins account balance at one time; the number of Coins you may
redeem within a given time period (for example, one day); the number of promotional Coins
you may obtain in a single event; and other features and uses determined by us in our sole
discretion.
If we post Coins to your account for an activity that is subsequently voided or canceled or
that involves a returned item, then we will remove those Coins from your account. You must
ensure that we properly post your Coins to your Coins account. If you believe that you have
validly acquired Coins that we have not posted to your Coins account, you must contact us
within one hundred twenty (120) days after the date you claimed to have acquired those
Coins. We may require reasonable documentation to support your claim.
5. VIRTUAL GOODS
In our sole discretion, we may offer you the opportunity to redeem Coins for access to
certain
Virtual Goods through our Services. As part of these Services, and subject to the Company
Terms of Use and these VGC Terms of Use, we grant you a limited, non-transferable,
revocable license to use the Virtual Goods through our Services and send them to other
users for use through the Services. Regardless of the use of the terms “purchase,” “buy,”
“sell,” “order” or the like on our Services or in these VGC Terms of Use, you do not own any
Virtual Goods and acknowledge that the Virtual Goods are a service of the Company and
that you have only a license to use the Virtual Goods in accordance with these VGC Terms
of Use. All use of the Virtual Goods is for personal, non-commercial use only. We will use
commercially reasonable efforts to make Virtual Goods you have purchased available for
use within a reasonable period of time after purchase. If you violate the Company Terms of
Use or deactivate your Company account, our offering of Virtual Goods, and your license to
any Virtual Goods, may also be cancelled, without any right to compensation for you.
The existence of a particular Virtual Good available for redemption with Coins is not a
commitment by us to maintain or continue to make the particular Virtual Good available in
the future. We may revise, discontinue, or modify Virtual Goods at any time without
notification to you. We will have no liability of any kind if a product or service that you have
ordered is unavailable. If necessary, we reserve the right to substitute items of equal or
greater value when an item or service is unavailable or we may cancel your purchase.
The length of time you or your recipients may have access to Virtual Goods you purchase
will be determined by us in our sole discretion. The images and other content included as
part of Virtual Goods is part of our Proprietary Materials (as defined in the Company Terms
of Use) and is subject to all terms and conditions regarding such Proprietary Materials as set
forth in the Company Terms of Use. In addition, any message or other content that you may
include with Virtual Goods must comply with all terms and conditions regarding content as
set forth in the Company Terms of Use . Without limiting any of the foregoing, neither you
nor any potential recipient of a Virtual Good may reproduce, distribute, transfer, modify or
otherwise use Virtual Goods in any manner other than as expressly authorized by the
Company.
6. ERRORS
While we attempt to be as accurate as possible and eliminate errors associated with our
Services, we do not warrant that any product, service or description, photograph, pricing or
other information is accurate, complete, reliable, current or error-free. In the event of an
error, whether on our Services, in an order confirmation, in processing an order, delivering a
Virtual Good or Coins or otherwise, we reserve the right to correct such error and revise your
order accordingly if necessary (including charging the correct price) or to cancel the order
and provide you with a merchandise or service credit (including issuing, at our option, Coins
as described above), with a value at least equal to the amount charged to you. We reserve
the right to determine and modify from time to time the exact nature of any such
merchandise or service credit, including conversion into one or more different types of
merchandise or service credits. Your sole remedy in the event of such error is to cancel your
order and obtain a credit as set forth above. To request a credit, write to us by following the
instructions here . You release us from all liability and claims of loss resulting from any error
that you do not report to us within 120 days after the error first occurs. If you do not tell us
within this time, we will not be required to correct the error.
7. DISCLAIMERS
ALL PRODUCTS AND SERVICES MADE AVAILABLE THROUGH THE OUR SERVICES,
INCLUDING COINS
AND VIRTUAL GOODS, ARE PROVIDED “AS-IS” AND THE COMPANY, ON BEHALF OF
ITSELF AND ITS
LICENSORS AND SUPPLIERS, DISCLAIMS ANY AND ALL REPRESENTATIONS AND
WARRANTIES,
WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED
WARRANTIES OF
TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-
INFRINGEMENT. WE
CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE
OF PRODUCTS OR
SERVICES. WE DO NOT REPRESENT OR WARRANT THAT PRODUCTS, SERVICES
OR ANY PART
THEREOF, ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR
THAT PRODUCTS OR
SERVICES THAT ARE DOWNLOADED THROUGH OUR SERVICES ARE FREE OF
VIRUSES OR OTHER
HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE
USE AND DOWNLOADING OF ANY SUCH CONTENT OR MATERIALS AND USE
INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES.
Reference to any products, services, processes or other information, by trade name,
trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement,
sponsorship or recommendation thereof, or any affiliation therewith, by us.
8. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL
THE COMPANY OR
ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS AND SUPPLIERS BE LIABLE
TO YOU OR ANY
THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL,
SPECIAL OR
PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING
FROM YOUR
PURCHASE OR USE OF ANY VIRTUAL GOODS OR COINS, OR OTHER PRODUCTS OR
SERVICES,
INCLUDING VIRTUAL GOODS, EVEN IF THE COMPANY IS AWARE OR HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY’S AND ITS
LICENSORS’ AND SUPPLIERS’ TOTAL
CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN
CONTRACT OR TORT
OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS YOU PAID FOR THE
PRODUCTS OR SERVICES
AND SHALL IN NO EVENT EXCEED $100. SOME JURISDICTIONS DO NOT ALLOW
LIMITATIONS ON
IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.
IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS,
EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE
ADDITIONAL RIGHTS.
9. INDEMNITY
You agree to indemnify and hold the Company, its subsidiaries and affiliates, and each of
their directors, officers, managers, agents, contractors, partners and employees harmless
from any loss, liability, claim, damages, costs, expenses or demand, including reasonable
attorney’s fees, due to or arising out of your purchase or use of any Virtual Goods or Coins,
or other products or services made available through Services, any termination or
suspension of your account or right to use Virtual Goods or Coins or any violation of these
VGC Terms of Use, the Company Terms of Use, of any law or the rights of any third party.
10. MISCELLANEOUS
These VGC Terms of Use constitute the entire agreement between you and the Company
regarding the subject matter set forth herein, and supersede all prior and contemporaneous
agreements regarding the same. If any provision of these VGC Terms of Use is held illegal,
void, invalid or unenforceable, such provision will be changed and interpreted to accomplish
the objectives of the provision to the greatest extent possible under any applicable law and
the remaining provisions will continue in full force and effect. The failure of the Company to
exercise or enforce any right or provision in these VGC Terms of Use shall not operate as a
waiver of such right or provision. Other than any affiliate of the Company, there are no third-
party beneficiaries to these VGC Terms of Use and no third party who is not a party to this
agreement shall have any right to enforce any term of these VGC Terms of Use. In the
event of a conflict between these VGC Terms of Use and the Company Terms of Use with
respect to the terms of conditions of the Coins or any Virtual Good, these VGC Terms of
Use shall be controlling.