This Terms of Service Agreement (“Agreement”) provides the terms and conditions pursuant to which SmileFy, Inc., located in 66 W. Flagler St, Suite 945, Miami, Florida 33130 (“SmileFy”) will provide certain digital marketing and related Services (defined herein) to Client. As used in this Agreement, “Client” means a natural person or legal entity (such as a corporation, limited liability company, firm, partnership or other entity recognized at law) who subscribes for and receives the Services, together with such person or entity’s affiliates, subsidiaries, successors and assigns.
THE SERVICES ARE OFFERED TO CLIENT ONLY UPON THE CONDITION THAT CLIENT ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY RECEIVING OR USING ANY OF THE SERVICES, IN WHOLE OR IN PART, CLIENT AGREES TO ENTER INTO THIS AGREEMENT.
1. Services. In consideration of the promises of Client set forth herein (including without limitation Client’s payment of the consideration for the Services as herein provided), SmileFy will provide Client with (i) Facebook/Messenger Advertisement & Marketing Services (including campaign generation, distribution, and campaign optimization) (Services”); and/or (ii) Website design and implementation services and/or (iii) Rating & Reviews Services and/or (iv) additional services as social content generation services, branding, generation of marketing material (collectively, as applicable the “other Services”). Unless Client purchases a multi-location subscription, Services shall correspond to one unique geographic location, which shall be designated and agreed-upon during the sign-up process. Services for separate locations will increase fees payable by Client hereunder. In connection with the delivery of the Services, SmileFy will provide Client with access to detailed reporting for the Services.
2. Term; Authorization. SmileFy will provide Services to Client on a month-to-month basis (each month during which Services are provided to Client hereunder is referred to herein as a “Subscription Period”). There is no one-time onboarding fee. The first Subscription Period payment is due to SmileFy on sign-up via credit card or ACH payment. Installment payment amounts are subsequently billed and collected for the upcoming Subscription Period as provided herein.
Client acknowledges that SmileFy provides other services to its customers, such as website development services, Rating and Review Services, or other services (collectively, as applicable the “other Services”). If applicable to Client, the fees for the other services are billed and collected on sign-up via credit card or ACH payment.
The other Services may be covered by separate terms of service agreements between SmileFy and Client.
3. Authorization. Client authorizes SmileFy to act on Client’s behalf as Client’s Advertisement and Marketing provider during the initial Subscription Period and all renewal Subscription Periods. Such authorization includes the right to post, publish and edit Client’s Web business profile information and Internet and social media advertisements and (where elected by Client) to post content to such profiles or advertisements.
4. Copyright. Ownership of content generated by SmileFy in connection with the Services transfers from SmileFy to Client (where permitted by third party licensing arrangements) only after payment in full by Client of all invoices applicable to such content. Client acknowledges that, at SmileFy’s expense, a domain name may be registered and hosted with a microsite created for Client in furtherance of delivery of the Services hereunder. The microsite and related domain are integrated into SmileFy’s proprietary digital marketing system and shall remain the property of SmileFy and shall not be transferable to Client.
In providing the Services SmileFy may utilize and/or make available to Client software owned by third parties and licensed to SmileFy (“Third Party Software”). Client’s use (where permitted) of Third Party Software is governed by software licenses relating to such Third Party Software. These Terms and Conditions do not modify the terms of any Third Party Software license agreements.
5. Fees and Payment. As consideration for the Services, Client agrees to pay the periodic subscription fees associated with the Facebook Advertisement and Marketing Services requested by Client. Subscription fees are subject to modification by SmileFy at any time.
The payments for other Services are one-time fees and have to be paid up-front.
All payments to SmileFy for the Services or other Services shall be made in immediately available funds, in U.S. Dollars, by credit card or automatic checking account withdrawal (“ACH” – available for U.S. Clients only). SmileFy may retain and store Client’s payment information, including but not limited to, credit card number and expiration date or ACH account and routing information. Due to the nature of the Services, all sales for each periodic Subscription Period are non-refundable, except as expressly provided herein. SmileFy is authorized to charge the subscription renewal fee for upcoming Subscription Period Services to the credit card or ACH account provided to SmileFy by Client. Client may change its billing information on written notice to SmileFy. Invoices, where requested by Client, shall be delivered solely by e-mail to Client’s e-mail notice address provided to SmileFy during the sign-up process.
Credit Card or ACH customers must pre-pay for at least one month’s Services in advance and will be billed monthly in advance of the Services being provided after conclusion of the applicable pre-payment period.
Failure by Client to maintain valid and current payment arrangements with SmileFy may result in interruption or cancellation of the Services. Such interruption does not relieve Client of the obligation to pay for Services already provided to Client by SmileFy. If SmileFy is, or becomes, required by law to deduct or withhold any taxes (including without limited to sales taxes, use taxes, ad valorem taxes, or similar charges or assessments) from amounts due to SmileFy from Client, then all amounts due from Client shall be increased so that the net amount actually received by SmileFy after deduction or withholding of any such tax, charge or assessment will equal 100% of the agreed-upon charges.
All amounts not paid by Client shall bear interest at a rate of 1.0% per month (or the highest rate permitted by law, if less). Client agrees to pay all costs of collection (including reasonable attorney’s fees, expert witness fees, court costs, etc.) incurred by SmileFy arising from or relating to enforcement of its rights against Client.
Client is not entitled to any credits, rebates, discounts (volume or otherwise) or refunds provided to SmileFy by any third party online search providers or publishers.
(a) By Client. This Agreement and any renewal subscription arising hereunder may be terminated by Client by delivery to SmileFy of Client’s intention not to renew at least five days prior to the end of the then-current Subscription Period. Any termination notice received later than five days prior to the end of the current Subscription Period shall be effective immediately following the next applicable Subscription Period.
(b) By SmileFy. SmileFy may terminate this Agreement and/or suspend all or any portion of the Services at any time, without notice to Client, in the event Client fails to maintain valid payment information with SmileFy, or in the event that Client fails to pay for the Services. SmileFy may terminate this Agreement on at least 30-days written notice to Client in the event that SmileFy should determine that it will cease providing the same type of Services to all other eligible Clients that were receiving such Services as Client.
SmileFy may also decline to provide the Services, cancel the Services or to discontinue processing any subscription for Services not yet performed, at any time, and from time to time, in SmileFy’s sole and absolute discretion, if SmileFy determines in good faith that Client’s business practices: (i) are illegal, immoral, unethical or reasonably likely to expose SmileFy or its affiliates to potential criminal, administrative or civil liability, (ii) may result in damage to SmileFy’s reputation or image; or (iii) present any other issue or concern which SmileFy determines in good faith constitutes grounds for such termination. If SmileFy exercises such right to decline or cancel the Services, SmileFy will provide written notice to Client of such exercise and will refund to Client the un-earned portion of any deposits or subscription payments previously paid by Client in the immediately-preceding subscription period, within thirty (30) days after issuing such notice. Upon cancellation of the Services, SmileFy shall have no further duties or responsibilities except as expressly set forth herein regarding post-termination responsibilities of the parties.
(c) Bankruptcy, etc. Either party may terminate this Agreement immediately in the event that the other party becomes insolvent, or the other party makes an assignment for the benefit of creditors, or the other party does not pay its debts as they become due or admits its inability to pay its debts when due, or the other party files or has filed against it a petition under any provisions of the Bankruptcy Act or an application for a receiver, trustee or custodian is made with respect to such Party.
(d) Duties on Termination. Upon any termination of this Agreement for any reason, Client shall: (i) discontinue any use, retention, display or distribution of any of the work product or materials provided to Client by SmileFy hereunder for which ownership has not passed to Client pursuant to Section 4 hereof and delete from all storage servers and devices all such work product or materials; (ii) discontinue all use of SmileFy’s trademarks, together with all other software of intellectual property owned or licensed by SmileFy; (iii) delete from all storage servers and devices all work product or materials received under this Agreement for which title has not passed to Client; and (iv) discontinue its use of all Third Party Software if required by the license agreements pertaining to same.
Upon termination of this Agreement, SmileFy shall exercise reasonable efforts to return to Client, delete or destroy (in SmileFy’s sole and absolute discretion) all Client Data (defined herein) provided by Client in connection with the Services. Due to the impracticability of removal of content from social media forums, content posted by SmileFy on Client’s behalf during the term of this Agreement on social media forums, blogs or other electronic services may continue after termination of this Agreement, without the necessity of deletion or discontinuation by SmileFy. SmileFy will exercise reasonable efforts to provide Client, on Client’s written request therefore, with user name and password access to third party social media and other electronic accounts established on behalf of Client by SmileFy. SmileFy reserves the right to discontinue SmileFy blog posts displaying Client’s social media content after termination of this Agreement.
7. Client Data; License.
(a) Client is responsible for providing SmileFy with current and accurate data necessary for SmileFy to provide the Services. As used herein, “Client Data” shall include, without limitation, client’s website domain name and URL, Client’s business name, address, telephone number(s), facsimile number(s), e-mail address(es), social media and website content subject matter, ideas and concepts, artwork and other printed material or data submitted by Client to SmileFy to enable SmileFy to provide the Services hereunder. Client hereby grants SmileFy a royalty-free license during the term of this Agreement and all renewal terms to use the Client Data for purposes of providing the Services.
(b) In the course of using the Services, Client may be required to provide SmileFy personally-identifiable information of Client, including contact information, username and password (“Credentials”). All Credentials submitted by Client in this respect constitute Client Data pursuant to the immediately preceding paragraph. SmileFy handles personally-identifiable information of its customers with reasonable attention, care and security. Nonetheless, Client, not SmileFy, shall be responsible for maintaining and protecting Client’s Credentials in connection with the Services. If Client’s Credentials change, Client must notify SmileFy promptly and keep such information current. Client is solely responsible for any activity using Client’s Credentials, whether or not Client authorized such activity. Client should immediately notify SmileFy of any unauthorized use of Client‘s Credentials or if Client’s email address, user name or password has been hacked or stolen. Client will notify SmileFy immediately if Client discovers that any third party is using Client’s Credentials without Client’s consent, or Client discovers any other breach of security pertaining to Client’s Credentials.
(c) While SmileFy may use Client’s customer lists or customer information for purposes of providing the Services, SmileFy does not sell or distribute to third parties Client’s customer lists or aggregated customer information.
8. Client Representations and Warranties. Client represents and warrants to SmileFy that: (a) Client owns or has all requisite rights, licenses and permissions to submit the Client Data to R SmileFy for the use contemplated by the Services; (b) the use by SmileFy of the Client Data for the purposes of providing the Services hereunder does not, and will not, infringe any intellectual property or other rights of any third party or the laws, rules, regulations, orders or treaties of any governmental authority or jurisdiction; (c) the Client Data does not, and will not, infringe upon any trademark, copyright, contract or property rights of any third parties and that Client has paid any and all royalties or other charges to be paid pursuant to the copyright law of the United States, any statute, order or other law, right or contract governing the Client Data; (d) the Client Data does not, and will not, contain any materials which are libelous, defamatory, obscene, or invades the rights of privacy or other rights of any individual; (e) Client’s business activities comply with the applicable laws, rules and regulations of all federal, state and local governmental authorities having jurisdiction over Client; (f) Client has all necessary power and authority to enter into and perform in accordance this Agreement; (g) this Agreement is legal, valid, binding and enforceable against Client; and (h) neither the execution of, nor performance under, this Agreement by Client violates or will violate any law, rule, regulation or order, or any agreement, document or instrument, binding on or applicable to Client.
9. Client Indemnification. Client shall indemnify, defend and hold harmless SmileFy, together with its officers, directors, employees, agents, contractors and permitted assigns from and against any and all third party demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) directly or indirectly arising from or in any way connected with: (i) the lawful use of or reliance by SmileFy on the Client Data in performing the Services under this Agreement, (ii) any breach of or default under the terms, conditions, representations or warranties of this Agreement by Client, or (iii) any negligence, gross negligence or willful misconduct by or on behalf of Client or its employees or agents.
10. Express Limited Warranty; Limitations on Liability.
(a) Limited Warranty. SmileFy shall provide the Services under this Agreement in a professional manner, consistent with generally-accepted standards applicable to the marketing industry in which the Services subside.
(b) Representations and Warranties Limited. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE SERVICES ARE PROVIDED “AS-IS” AND SMILEFY DOES NOT MAKE ANY WARRANTY, REPRESENTATION OR GUARANTY AS TO THE AVAILABILITY, ACCURACY, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING OR SPEED OF DELIVERY OF THE SERVICES OR OTHER DATA, REPORTS OR INFORMATION FURNISHED TO CLIENT HEREUNDER. FURTHERMORE, THE SERVICES MAY BE SUBJECT TO TRANSCRIPTION AND TRANSMISSION ERRORS. THE EXPRESS LIMITED WARRANTY SET FORTH IN PARAGRAPH 10(a) IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTIES, EXPRESS OR IMPLIED, AND ALL SUCH OTHER WARRANTIES, REPRESENTATIONS, AND GUARANTIES ARE HEREBY DISCLAIMED. ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM ANY COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXPRESSLY DISCLAIMED.
(c) No Authority to Modify. No employee, salesperson, vendor or other agent or purported agent of SmileFy is authorized to make any warranties, representations or guaranties to the contrary of the foregoing, and any such purported warranties, representations or guaranties shall not be relied upon as having been given by or on behalf of SmileFy. Furthermore, Client acknowledges that it is the responsibility of Client to verify any information upon which it or any of its employees or agents use, rely on or otherwise take action upon with respect to financial or other consequences.
(d) Limitations on Liability. If SmileFy fails to perform its duties and obligations under this Agreement, and Client can establish that as a direct result thereof, Client has incurred any damages, liabilities, losses, fees, costs or expenses, then SmileFy’s liability to Client for actual damages for any cause whatsoever, during the term of this Agreement, whether in contract, tort (including negligence), strict liability or otherwise, shall not exceed in the aggregate the fees that Client has paid for the Services in question during the Subscription Period in question. IN NO EVENT SHALL SMILEFY OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOSS OF PROFIT OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, MULTIPLE, PUNITIVE OR CONSEQUENTIAL DAMAGES SUSTAINED OR INCURRED BY CLIENT OR ANY THIRD PARTY IN CONNECTION WITH THE SERVICES, ANY ACTION ANY OF THEM TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS CLIENT SENDS TO SMILEFY OR THE DELAY OR INABILITY TO USE ANY SERVICES, OR SMILEFY’S REMOVAL, MODIFICATION, SUSPENSION OR DELETION OF ANY SERVICES PURSUANT TO ITS RIGHTS UNDER THIS AGREEMENT, IN ALL CASES, REGARDLESS OF THE FORM OF THE ACTION AND WHETHER SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND EVEN IF SMILEFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR AN ACTION FOR NON-PAYMENT BY SMILEFY, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS OCCURRED.
(e) Search Engine Guideline Penalties. Client shall inform SmileFy of any past or future marketing plans implemented or to be implemented by Client so that SmileFy may factor such plans into its planning for the Services hereunder. SmileFy shall not be responsible for any search engine guideline penalties caused by Client’s marketing plans, whether or not disclosed to SmileFy.
(f) Third Party Art. From time to time, Client may request SmileFy to provide photographs, images, infographics, illustrations or other artwork in connection with SmileFy’s provision of the Services. To the extent that such photographs, images, infographics, illustrations or other artwork are sourced by SmileFy from one or more third party services and provided to Client as part of the Services, such items constitute “Third Party Art” hereunder. SmileFy cannot, and does not, guaranty that all Third Party Art is validly-licensed for Client’s intended or actual use. ACCORDINGLY, CLIENT ACKNOWLEDGES AND AGREES THAT IF CLIENT REQUESTS SMILEFY TO INCLUDE THIRD PARTY ART AS A COMPONENT OF THE SERVICES, CLIENT ASSUMES ALL RISKS ASSOCIATED WITH CLIENT’S USE OF THIRD PARTY ART. CLIENT AGREES TO PERFORM WHATEVER DUE DILIGENCE CLIENT BELIEVES IS NECESSARY IN ORDER TO PERMIT CLIENT TO USE THIRD PARTY ART INCLUDED IN THE SERVICES (INCLUDING WITHOUT LIMITATION, OBTAINING AN INDEPENDENT LICENSE IN CLIENT’S NAME TO USE SUCH THIRD PARTY ART). CLIENT HEREBY AGREES TO HOLD HARMLESS SMILEFY, ITS AFFILIATES, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, SUCCESSORS AND PERMITTED ASSIGNS, FROM AND AGAINST ANY AND ALL COSTS INCURRED OR PAID BY CLIENT OR ANY THIRD PARTY ON ACCOUNT OF THIRD PARTY ART INCLUDED WITH THE SERVICES, EXCEPTING THEREFROM, COSTS INCURRED AS A DIRECT AND PROXIMATE RESULT OF SMILEFY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
11. Confidential Information.
(a) Definition. For purposes of this Section 11, “Confidential Information” of a Disclosing Party shall mean and include any information, written or oral, which relates to such Disclosing Party’s business, products, processes or services that is specifically designated as “Confidential Information” by such Disclosing Party or that constitutes “trade secrets” pursuant to the Uniform Trade Secrets Act as adopted in the State of Delaware, USA. Notwithstanding the foregoing, the following shall not constitute Confidential Information: (a) information that was already known to the receiving party prior to disclosure or is later made public by or for the Disclosing Party on an authorized basis; (b) information obtained or readily ascertainable from the general public; (c) information received from a third party not known to be employed by or affiliated with the disclosing party; (d) information that was independently developed by the Receiving Party without reference to Confidential Information; and (e) information which is or becomes known to the general public other than through a breach of this Agreement. Client acknowledges and agrees that SmileFy may share information about SmileFy’s customers and basic information about Client’s listing and statistical summary data with prospective customers for the purpose of marketing SmileFy’s services. The terms of this Agreement, along with SmileFy’s pricing, software and technical documentation related to the Services shall be deemed Confidential Information regardless of any lack of designation.
(b) Duties. Each party (a “Receiving Party”) shall treat all Confidential Information, tangible and intangible, received by it in connection with this Agreement that pertains to the other party (a “Disclosing Party”) as confidential and proprietary information of the Disclosing Party, will not make any such Confidential Information available to any other person (except a subcontractor or contractor/affiliate who has also agreed to provisions substantially similar to those set forth in this Section 11), will use reasonable care to protect such Confidential Information from theft, loss, misuse and disclosure and will not use such Confidential Information except for Receiving Party’s benefit in connection with this Agreement. Each Receiving Party will, to the extent reasonably possible, return to the Disclosing Party all Confidential Information on termination of this Agreement. If a Receiving Party is ordered by law to disclose Confidential Information, such Receiving Party may do so, but only to the extent required by applicable law or process and only after first giving the Disclosing Party prompt written notice of that order.
(c) Remedies. The Parties acknowledge that the Confidential Information is of a special and extraordinary character, and that any breach of this Section 11 will cause a Disclosing Party irreparable injury and damage, and so each Disclosing Party will be entitled, in addition to all other legal or equitable remedies available to it, to injunctive relief to prevent, cease or otherwise redress that breach.
(a) Assignment. Client may not assign any of its rights or obligations under this Agreement, by operation of law or otherwise, without first obtaining SmileFy’s written consent, except that Client may assign this Agreement without SmileFy’s consent (i) to an affiliate (controlled by or under common control with, Client); or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Client’s assets not involving a direct competitor of SmileFy; provided that Client provides prompt written notice to SmileFy of such assignment. Any permitted assignment by Client shall not modify the terms hereof, including without limitation, the specific geographic location applicable to the Services. Any attempt to assign Client’s rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
(b) Notice. Except as otherwise provided in this Agreement, any notice to Client that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon transmission when sent by e-mail or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, to the address provided by Client in the sign-up materials provided to SmileFy in connection with entering into this Agreement or to such other address as provided in writing by Client to SmileFy for such purposes. Except as otherwise provided in this Agreement, any notice to SmileFy that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by e-mail to: email@example.com or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, such as Federal Express or equivalent, to: SmileFy, Inc., 66 W. Flagler St, Suite945, Miami Florida 33130, Attn: Legal Notice. Upon receipt, if a valid e-mail address is provided and remains current, SmileFy may give notice to or communicate with Client by e-mail addressed to the persons identified in the sign-up process or to such other e-mail address or persons as Client shall hereafter specify by prior written notice. By providing an e-mail address, Client agrees that any receipt received by SmileFy from Client’s service provider or Internet computer server indicating that the e-mail was received shall be deemed proof that Client received the message. If Client cannot see or print all or a portion of a message, Client agrees that it is Client’s responsibility to contact SmileFy to resolve such technical issues.
(c) Force Majeure. Due performance of any duty or obligation hereunder by SmileFy hereunder shall be excused if prevented by acts of God, information providers or other service providers, public enemy, war, terrorism, any accident, explosion, fire, storm, earthquake, flood, strike, computer outage or virus, telecommunications failure or any other circumstance beyond or event SmileFy’s reasonable control. Client acknowledges that SmileFy has no responsibility for or control over search engines or Internet database partner(s) usage of customer data in fulfilling Internet search queries or any particular placement of any information from Client as a result of a search or query on any third party Web site. Client further acknowledges that SmileFy has no responsibility for, or control over, third party social media content requirements or rules applicable thereto.
(d) Severability. If any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason, then the validity, legally or enforceability of the remaining provisions of this Agreement shall not be affected thereby. To the extent permitted by applicable law, the parties waive any provisions of law that render any provision of this Agreement invalid, illegal or unenforceable in any respect.
(e) Waiver or Consent. Any failure by either of the Parties to comply with any obligation, covenant, condition or agreement contained herein may be waived in writing by the party entitled to the benefits thereof, but such waiver or failure to insist on strict compliance with such obligation, covenant, condition or agreement shall not operate as a waiver of or estoppel with respect to any subsequent or other failure. To be effective, any consent by SmileFy must be in writing and signed by an authorized representative of SmileFy.
(f) Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes and replaces all prior writings or oral negotiations or other understandings with respect thereto.
(g) Independent Parties. Nothing in this Agreement shall be construed as creating a partnership, joint venture, fiduciary or (except as expressly set forth in Section 2) agency relationship between the parties, or as authorizing either party to act as an agent for the other. The parties to this Agreement are independent parties.
(h) Resolution of Disputes; Binding Arbitration; No Class Representative Actions or Arbitrations.
(i) ANY AND ALL CLAIMS BETWEEN SMILEFY AND CLIENT BE RESOLVED IN BINDING ARBITRATION RATHER THAN IN COURT. SmileFy and Client agree to submit to individual arbitration the resolution of any and all Claims (defined herein) by or between SmileFy or its affiliates and Client relating to the Services or these Terms of Service. SmileFy and Client agree that these Terms of Service affect interstate commerce, and that the enforceability of this Section 11(h) will be governed by, construed, and enforced, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1–9 (“FAA”). “Claim(s)” means any dispute, claim or controversy by or between Client and/or SmileFy or its affiliates, relating to the Services and/or these Terms of Service, as may be modified from time-to-time, and the subject matter hereof, including, but not limited to, any contract, tort, statutory, or equity claims.
(ii) Any arbitration will be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (the “AAA Rules”), as modified by this Agreement. As required by the AAA Rules, if Client initiates the arbitration proceedings, Provider must send the original copy of the completed form to SmileFy, which should be sent to SmileFy at the notice address set forth in Section 11(b), Attention: “Arbitration Notice.”
(iii) CLIENT AND SMILEFY AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WHETHER IN ARBITRATION OR IN COURT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Client and SmileFy expressly agree that any Claim is personal to Client and SmileFy and its affiliates, and any such Claim shall only be resolved by an individual arbitration, and shall in no event be brought as a class arbitration, a class action, or any other representative proceeding. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding.
(i) Governing Law; Forum for Disputes. This Agreement and all terms and conditions included or incorporated by reference herein shall be governed by and interpreted in accordance with the laws of the State of Delaware applicable to agreements made and wholly performed therein. Client hereby consents to the exclusive jurisdiction of the federal and state courts of competent jurisdiction located in Dover, Delaware for the adjudication of any disputes arising out of or relating to this Agreement or Client’s access to or use of the Services. Client hereby waives any objection to venue or inconvenient forum laid therein.
(j) Revisions. In order to meet changes in search engine guidelines or other factors impacting Web and social media content optimization and marketing trends, SmileFy may revise this Agreement at any time by updating this posting and providing Client with written notice of such update. Client should visit this page from time to time to review the current Agreement, which shall continue to be binding on Client in its revised form.
Rev. February, 2018