Terms & Conditions
Effective Date: December 16, 2010
Favsmile, Inc. (“Favsmile”) makes available the <favsmile.com> website and its associated content, including but not limited to text, images, photographs, sound files, designs, trademarks, logos, copyrights, advertisements, marketing tools, data, icons, and messages (collectively “Website”) subject to the provisions of this Terms of Use Agreement (“Agreement”). To use the Website, you must agree to and adhere to the terms of this Agreement. If you do not agree to the terms of this Agreement, you are expressly prohibited from using the Website.
Favsmile retains the right to change the terms of this Agreement at any time and in its sole discretion, with or without notice. Should the terms of this Agreement change, the Effective Date of this Agreement will change to reflect the effective date of the change. Your continued use of the Website after a change in the Effective Date of this Agreement will constitute your manifestation of assent to any changes.
IF YOU ARE UNDER THE AGE OF 18, YOU MUST SEEK THE CONSENT OF YOUR PARENT OR GUARDIAN BEFORE ACCESSING OR USING THE WEBSITE. NOTE TO PARENTS: IF YOUR CHILD IS UNDER THE AGE OF 13, YOU MUST PROVIDE FAVSMILE WITH VERIFIABLE PARENTAL COSENT BEFORE ALLOWING YOUR CHILD TO ACCESS OR USE THIS WEBSITE.
1. Capacity to Contract. You warrant and agree that you are above the age of eighteen (18) and that you are competent, able, and willing to asset to the terms of this Agreement. If you are above the age of 13 but under the age of 18, you warrant and agree that you have your parent’s or guardian’s consent, and your parents or guardians represent and warrent that they have so provided their constent, to use the Website and that you and your parents or guardians are fully capable of agreeing to the terms, conditions, obligations, affirmations, warranties, and representations contained in this Agreement. You agree to be bound by the terms of this Agreement whether you have registered a user account with the Website or not. Any use outside of the terms of this Agreement is void where prohibited.
2. Lawful Use. You are expressly prohibited from using the Website outside of the uses allowed for under the terms of this Agreement and/or from using the Website in violation of any applicable law or regulation. You warrant that you will comply with all applicable laws or regulations when using the Website.
3. Errors and Omissions. You understand and agree that Favsmile will not be held liable for any errors or omissions in the Website and makes no representations concerning the accuracy of the Website. You agree to hold Favsmile harmless for any and all inaccuracies, omissions, or errors on the Website or within content submitted to the Website by third parties. You further understand and agree that Favsmile does not control third party websites that may be linked to through the Website. Favsmile will not be held liable for the information contained on any third party website or any information intercepted or used by a third party website that is not under Favsmile’s control. If you choose to leave this website via links to third party sites, Favsmile is not responsible for the terms of use, privacy policies or the cookies those sites use. In no event shall any reference to any third party site, product or service be construed as an approval or endorsement by Favsmile of such site, product or service. You also understand and agree that nothing on the Website will be considered to be a representation to be reasonably relied upon or will create a duty of car or warranty of any kind.
4. Registered User Accounts. Favsmile may, from time to time, allow you to register a user account, which may provide you with access to additional features of the Website. You may appoint other individuals to act as your agent in accessing or using the Website. You warrant that any individual that you grant access to your account has authority to act as your legal agent and has the legal capacity needed to contract with Favsmile. You understand that you bear the ultimate responsibility for any and all access to your account, whether authorized or unauthorized. You agree to hold harmless and indemnify Favsmile for any damages that may arise out of or in relation to the use of your user account. You also understand and agree that you bear the ultimate responsibility for backing up any User Generated Content that you submit to Favsmile or the Website.
5. Ownership of Website Content. Favsmile owns, or has licensed rights to, the Website and its contents, including but not limited to its text, software, scripts, graphics, photos, files, images, sounds, selection and arrangement, and interactive features. Favsmile also owns any and all trademarks, service marks, designs, or logos that are contained on the Website. The Website is subject to copyright, trademark, trade secret, and all other intellectual property rights.
Except for the User Generated Content that you provide, the Website may not be used, modified, derivative works made thereof, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the prior written consent of Favsmile.
Favsmile’s trademarks, service marks, design marks, trade names, and logos, including but not limited to FAVSMILE, are registered or common law trademarks, service marks, design marks, trade names, or logos under the laws of the United States and other countries. You understand and agree that you may not use the trademarks, service marks, design marks, trade names, or logos of Favsmile or anything confusingly similiar thereto to indicate source or sponsorship or in a way that is likely to cause confusion as to source or sponsorship, in meta tags, in domain names, vanity URLS, or otherwise without the prior written consent of Favsmile.
6. License to Use Website. Favsmile grants you a limited, non-exclusive, royalty free, non-sublicensable, revocable license to use the Website for non-commercial purposes. You are expressly prohibited from republishing, framing, modifying, reproducing, downloading, transmitting, selling, incorporating, making derivative works of, distributing, displaying, or otherwise using the Website without the prior written consent of Favsmile. You are expressly prohibited from using any robots, data mining, scraping, hacking, or other data gathering or extraction methods on the Website. You agree that you will not use any device, software, or other instrumentality to disrupt, damage or interfere with or attempt to disrupt, damage or interfere with the proper functioning of this website; you will not violate or attempt to violate the security of this website including, without limitation, (i) logging onto an account that you are not authorized to access; (ii) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the website, overloading, "flooding", "spamming", "mail bombing" or "crashing"; or (iii) attempt to transmit any "virus", "trojan horse" or other software destruction or disruption device. You agree that you will not make any derivative works of the Website or delete or modify the Website content in any way, including without limitation the removal of any copyright or trademark notification or attribtion information. Favsmile reserves all rights in and to the Website.
You agree and warrant that you will not use the Website for commercial use without the prior written consent of Favsmile. These prohibited commercial uses include but are not limited to the sale of the Website’s content, use of the Website’s content for the purpose of gaining subscription or advertising revenue, and the use of the Website’s content to displace the market for Favsmile.
This limited license will automatically terminate if you breach any of the terms or conditions of this Agreement. Favsmile may terminate your use of the Website, including any member account, and delete any User Generated Content that you submit to Favsmile or the Website at any time and in its sole discretion, including for a breach of the terms or conditions of this Agreement.
7. Rights to User Generated Content. You agree to give Favsmile an irrevocable, non-exclusive, royalty free, worldwide, perpetual and sublicensable license to use any content that you submit to the Website for the purposes of the Website. The purposes of the Website include but are not limited to making copies of your submitted content for storage or archival purposes. You give Favsmile permission to reproduce, publish, distribute, modify, destroy, create derivative works, display or otherwise utilize your submitted content for the purposes of the Website. You hereby explicitly waive all moral rights in or to your submitted content, whether you have or have not asserted rights in or to your submitted content.
You warrant and agree that any content that you submit to the Website will not violate or infringe upon the rights of third parties, including copyright, trademark, privacy, publicity, patent, copyright, trade secret, intellectual property, or other personal or proprietary rights. You also warrant and agree that any content that you submit to the website will not contain defamatory material or any other unlawful material. You further agree and warrent that you shall not submit any content;
-That is known by you to be false, inaccurate or misleading;
-That infringes any third party's intellectual property rights or rights of publicity or privacy;
-That violates any law, statute, ordinance or regulation;
-That is, or may reasonably be considered to be, defamatory, libelous, hateful, racially or religiously biased or offensive, unlawfully threatening or unlawfully harassing to any individual, partnership or corporation;
- For which you were compensated or granted any consideration by any third party; or
-That contains any computer viruses, worms or other potentially damaging computer programs or files.
None of the content that you submit shall be subject to any obligation of confidence on the part of Favsmile, its agents, subsidiaries, affiliates, partners or third party service providers and their respective directors, officers and employees. By submitting your email address in connection with your content, you agree that Favsmile and its third party service providers may use your email address to contaact you about your content and other administrative purposes.
Favsmile reserves the right to terminate your access to the website it is sole discretion and at any time, including without limitation for a violation of the rights of a third party.
If you believe any materials ("Materials") on the website infringe your copyright or trademark rights, you may request such materials be removed by following the notice and take down procedures of the Digital Millennium Copyright Act. To follow those procedures, contact Favsmile (address below) and provide information;
-A clear statement identifying the works, or other materials belived to be infringed.
-A statement from the intellecual property owner ("Owner") or authorized representative that the Materials are believed to be infringing and not authorized by the Owner.
-Sufficient information about the location of the allegedly infringing materials so that office deopt can find and verify its existence.
-Your name, telephone number and e-mail address.
-A statement from you under penalty of perjury that the information supplied is accurate, and that you are authorized to act on the Owner's behalf.
-A signature or the electronic equivalent from the Owner or authorized representative.
Favsmile's agent for notice of copyright or trademark issues on the website can be reached as follows:
-copyright@favsmile.com
8. Intermediary Liability. You understand and agree that Favsmile is an interactive computer service and not an information content provider as Section 230 of the Communications Decency Act defines those terms. Favsmile will not be held responsible for the contents of content submitted to the Website or created through the Website by third parties. Though Favsmile is not responsible for third party content, Favsmile may, in its sole discretion, edit, delete, modify, or remove any content submitted to the Website any time with or without notice to the submitting party.
You understand and agree that Favsmile’s provision of the Website does not imply its approval or endorsement of any content that is submitted to the Website. You have a continuing obligation to report all inappropriate behavior to Favsmile immediately.
9. Limitation of Liability. THE WEBSITE IS PROVIDED BY FAVSMILE ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. FAVSMILE EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO EXPRESS WARRANTIES, IMPLIED WARRANTIES, STATUTORY WARRANTIES, WARRANTIES OF MERCHATABILITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF EFFORT TO ACHIEVE PURPOSE, WARRANTIES OF QUALITY OR ACCURACY, WARRANTIES OF NON-INFRINGEMENT, WARRANTIES OF TITLE, ABSENCE OF LATENT OR OTHER DEFECTS, AND THE PRESENCE OF ERRORS WHETHER OR NOT DISCOVERABLE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THIS EXCLUSION MAY NOT APPLY TO YOU.
FAVSMILE IS NOT RESPONSIBLE FOR ANY USER GENERATED CONTENT, USER CONDUCT, OR THIRD PARTY APPLICATIONS, SOFTWARE, OR OTHER CONTENT POSTED TO THE WEBSITE. FAVSMILE ASSUMES NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DESTRUCTION OF IDENTITY, OR UNAUTHORIZED, OR ALTERATION THEREOF.
YOU UNDERSTAND AND AGREE THAT FAVSMILE WILL NOT BE HELD LIABLE TO YOU FOR ANY CLAIMS, DAMAGES, PENALTIES, AWARDS, OR JUDGMENTS THAT ARISE OUT OF OR IN RELATION TO YOUR USE OF THE WEBSITE, INCLUDING BUT NOT LIMITED TO CONSEQUENTIAL DAMAGES, INCIDENTIAL DAMAGES, EXEMPLARY DAMAGES, SPECIAL DAMAGES, OR PUNATIVE DAMAGES. YOU UNDERSTAND AND AGREE THAT FAVSMILE WILL NOT BE HELD LIABLE TO YOU FOR ANY AMOUNT IN EXCESS OF THE AMOUNT THAT YOU PAID TO USE THE WEBSITE, AND IN NO CASE WILL THIS AMOUNT EXCEED $1,000. IF YOU DID NOT PAY TO ACCESS THE WEBSITE, YOU UNDERSTAND AND AGREE THAT YOUR REMEDIES WILL BE LIMITED TO INJUNCTIVE RELIEF ONLY UNLESS OTHERWISE PERMITTED BY LAW.
Favsmile reserves the right to discontinue the Website at any time and for any reason with or without notice to you.
10. Indemnification. You agree that you will hold harmless, defend, and indemnify Favsmile, including its members, employees, agents, affiliates, directors, officers, and board members, from and against all claims, damages, liabilities, penalties, costs, and judgments, including attorneys fees, that arise out of or in connection with your use of the Website, your violation of a term or provision of this Agreement, your violation of any law, statute, regulation, or ordinance, or your violation of the rights of a third party, including, without limitation infringement of the intellectual property rights of a third party. You agree that your obligation to hold harmless, defend, and indemnify Favsmile will survive the termination or failure of this Agreement and your use of the Website.
11. Remedies. The failure of Favsmile to seek relief for your breach of any duty under this Agreement will not waive the right of Favsmile to seek relief for any subsequent breach.
You agree that, for all legal and non-legal purposes, the Website is located in the State of Florida. You agree that the Website is a passive website and that the Website does not give rise to personal jurisdiction over Favsmile in jurisdictions other than Florida. This Agreement will be interpreted under and governed by the laws and legal principles of the State of Florida, without regard to conflicts of laws principles or statutes. Any dispute arising out of or in connection with this Agreement will be decided exclusively by arbitration.
YOU AND FAVSMILE AGREE THAT ARBITRATION WILL BE THE EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR CONCERNING THE VALIDITY, INTERPRETATION, BREACH, VIOLATION, OR TERMINATION OF THIS AGREEMENT. THIS ARBITRATION WILL BE HELD IN PALM BEACH COUNTY, FLORIDA AND WILL BE HELD IN ACCORDANCE WITH THE MOST RECENTLY EFFECTIVE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATOR WILL DECIDE THE CLAIM ON THE BASIS OF THE LEGAL PRINCIPLES AND LAWS OF THE STATE OF FLORIDA AND WILL HAVE THE DISCRETION TO AWARD ALL COSTS AND ATTORNEYS’ FEES. THE LOSING PARTY WILL BE REQUIRED TO PAY THE PREVAILING PARTY’S REASONABLE ATTORNEYS’ FEES. YOU AND FAVSMILE AGREE THAT THE DETERMINATION OR AWARD OF THIS ARBITRATOR MAY BE ENTERED AS A JUDGMENT IN ANY COURT SITTING WITHIN THE STATE OF FLORIDA THAT HAS JURISDICTION OVER THE SUBJECT MATTER OF THE DISPUTE. YOU AND FAVSMILE AGREE THAT THE PARTIES WILL BE PRESENT WITHIN THE STATE OF FLORIDA IN ORDER TO PERFORM THEIR OBLIGATIONS UNDER THIS AGREEMENT. YOU AND FAVSMILE HEREBY SUBMIT TO THE PERSONAL JURISDICTION OF ANY SUCH ARBITRATOR OR ARBITRATION PROCEEDING.
12. Limitation. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR IN RELATION TO THE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
13. Severability. If any provision of this Agreement is found to be invalid or unenforceable for any reason whatsoever, the remaining provisions will remain valid and unimpaired and will continue in force and effect.
14. Integration. This Agreement and its incorporated Privacy Policy and Copyright Policy constitute the entire agreement between the parties with respect to the Website. There are no further understands, agreements, or representations with respect to the Website that is not specified in this Agreement. You understand that any additional provisions that may appear in any communication from you will not bind Favsmile.
15. Abuse. Abuse of any kind including but not limited to; spam, pornography, profanity and racism will NOT be tolerated and upon notice may be removed without user consent as well as loss of right s to use your FAVsmile account. All action can be done without any notice.
16. Compliance with Local Laws. Each user is required to follow their local, state and federal laws pertaining to any question containing alcohol content. If you are under age in any of the above laws it is your responsibility to NOT answer these questions. Favsmile will remove answers and or suspend accounts with violations.
17.Mobile application. By joining and or downloading the mobile application for FAVsmile you are automatically agreeing to terms & conditions that apply to the use of FAVsmile.
18. Mobile application. By downloading and or installing this mobile application and/or joining FAVsmile.com, you agree to hold FAVsmile Inc. harmless for any disruptions in service, mobile technical issues, additional service charges, viruses, spyware, malware, or issues of any kind due to the use of the mobile application.
19.Mobile application. You agree that FAVsmile is not responsible for how your favorites or any information supplied to FAVsmile's website or mobile application is used by others.
20.Mobile application. You agree that FAVsmile is not responsible for any financial charges associated from the use of the mobile application. Including but not limited to mobile phone costs, repairs and service charges.
21.Mobile application. Your failure to follow these terms and conditions may result in suspension or termination of your access to the Program, without notice, in addition to our other remedies. We also reserve the right to discountinue the Program, or change the content or formatting of the program, at any time without notice to you, and to require the immediate cessation of any specific use of the Program.
22. Representation of information. You agree that the information provided is accurate and truthful. You agree that you are lawfully allowed to represent the information you provide either personal or business related. You agree to hold FAVsmile harmless in any fashion if the information provided is unlawful or misrepresented. If you create a group for business use, you are lawfully allowed to represent that business.
