Terms of Service

Last Updated: July 13, 2018

Thanks for using Smoolis. These Terms of Service ("Terms") describe your rights and responsibilities when using our online workplace productivity tools and platform ("Services"). Please read them carefully.

Smoolis is a cloud-based platform, available on the website and associated domains of www.smoolis.com. The Services offered by Smoolis include various products and services to easily create beautiful and highly functional online presence, including without limitation during free trials.

Before you start using or accessing the Smoolis services ("Services") or any of the services of Smoolis GmbH ("Smoolis", "we", "our", or "us") you ("you" or "your") are agreeing to these Terms ("Terms" or "Agreement") and the Privacy Policy. If you disagree with any of these Terms or the Privacy Policy, please do not use our Services.

The Smoolis platform is managed by the Swiss Limited Liability Company under the name "Smoolis GmbH", based in Zürich, c/o The Hub Zürich Association, Sihlquai 131, Postcode 8005, in Switzerland, and is legally represented, VAT ID: CHE-114.678.574 MWST, email: legal@smoolis.com, and is active in development, provision of services, distribution and trading of IT and data processing solutions and distribution of products in the fields of design, engineering and communication.

1. Account Terms

1.1.
To sign up for our Services you must have reached the age of eighteen (18). Minors are only permitted to register when they have the written permission of their respective legal representative (e.g. their parents).
1.2.
To create a Smoolis account ("Account") on our platform, you must fill in your details (site title, first name, last name, and a valid email address), create your personal access code (password) and a Smoolis subdomain name for using the Services (e.g. subdomain-name.smoolis.com). After completing our registration form, you will receive a welcome email describing your new Smoolis account, and how to access that account.
1.3.
A legally binding and enforceable contract shall take effect -unless otherwise agreed- upon successful completion of the registration process. The registration process shall only be successfully completed when we have informed you of such via welcome email.
1.4.
You do not have a claim to the conclusion of a contract. We reserve the right to refuse your offer to enter into a contract with us, without giving reasons.
1.5.
If you are signing up for our Services on behalf of your employer, then you represent and warrant that you have the authority to bind your employer to our Terms. Your employer shall be the account owner.
1.6.
Make sure your account information is valid, accurate, complete and always up to date. We may need to use this information to contact you.
1.7.
You verify that your country of residence is the same as the billing address.
1.8.
You may change your personal secret password at any time. Your account is accessible to you, via those codes, and you are solely responsible for keeping them secret and hiding them from third parties. If your password is lost or leaked, you should immediately notify us, otherwise our platform is not responsible for the use of the password by unauthorized persons.
1.9.
For security reasons, you are advised to change your password at regular intervals and avoid using the same and easily guessable passwords (e.g., date of birth). We also recommend that your password include not only letters and numbers but also symbols.

2. Privacy

At Smoolis we pay special attention to security and respect the privacy and confidentiality of your personal data. We have developed our Privacy Policy in order to fully inform you about how your information will be used by Smoolis. These Terms explicitly incorporate the Privacy Policy. To learn about how your personal data and cookies are processed and protected, read our Privacy Policy in more detail.

3. Your Obligations

3.1.
You should always use our Services and your Smoolis account in accordance with these Terms.
3.2.
You accept that you will not use our platform and your Smoolis account to send, post, upload or otherwise transmit any content that is unlawful, harmful, threatening, insulting, annoying, slandering, defamatory, vulgar, obscene, libelous, that violates a third party's private life or privacy, is indicative of hate or racial, national or other discriminations, or that may cause harm to minors in any way, is not allowed to be transmitted in accordance with the law or contractual or management relations (e.g. confidential information, proprietary and confidential information obtained or disclosed as part of an employment relation or covered by confidentiality agreements), violates any patent, trademark, trade secret, copyright or other proprietary rights of third parties, contains software viruses, worms or any other codes, files or programs designed to harm, cause damage, destroy or interfere with the operation of any software or computer hardware, violates intentionally or unintentionally the applicable Swiss, Community and international laws and regulations and may interfere with third parties in any way and any content used to collect or store personal data of other users. In the event of non-compliance by you with the above rules, the administrator of the platform reserves the right to disable your account, terminate your services and remove relevant reports and content.
3.3.
You accept that you will not attempt unauthorized access thereto and its server, or to any other server, computer, and database associated with our platform, and are committed not to attack it through denial of service attack or distributed denial of service attack. Breach of this obligation may constitute a criminal offense in accordance with applicable law. Any such infringement will be reported to the relevant law enforcement authorities. Similarly, in the event of such a breach, the right of you to use the platform will be immediately annulled.
3.4.
You agree that you will not request, collect, or use the login credentials of other users of our platform.
3.5.
It is expressly forbidden, either by you or by any third party, to:
a. copy, modify, create derivative works, republish, upload, display, transmit or distribute part or all of our platform;
b. use any bot, spider or application for site search or retrieval or any other device for copying, retrieving, archiving or indexing any part of the platform requiring authentication;
c. accessing all or part of our platform in order to build a rival platform or service.
3.6.
Every action that could influence the normal functioning of the Smoolis platform is prohibited.
3.7.
You may use our Services to create or publish sites and online stores, and your sites may have their own visitors and users ("End Users"). You understand and agree that your sites and your End Users are your responsibility, and you're solely responsible for compliance with any laws or regulations related to your sites and your End Users, including without limitation the posting of your own terms of service and privacy policy. We're not liable for, and won't provide you with any legal advice regarding, your sites or your End Users.

4. Our Rights

4.1.
We reserve the right to refuse Service to anyone for any reason at any time.
4.2.
We do not pre-screen content and it is in our sole discretion to refuse or remove any content that is available via our Services.
4.3.
We reserve the right to provide our services to your competitors and make no promise of exclusivity in any particular market segment.
4.4.
You further acknowledge and agree that Smoolis employees and contractors may also be Smoolis customers/merchants and that they may compete with you, although they do not use your confidential information in doing so.

5. Our Intellectual Property Rights

5.1.
All the content of our platform, including, but not limited to, pictures, photographs, drawings, graphics, texts, slogans etc. are the intellectual property of the controller and are protected by the relevant provisions of Swiss and European law, as well as international contracts. Names, pictures, logos and distinguishing marks representing controller and / or third parties are trademarks and distinguishing marks of controller and/or third parties and are protected by Swiss, Community and international laws on trademarks, industrial and intellectual property and unfair competition.
5.2.
You agree not to:
a. change, translate, create or attempt to make derivative works or copies of the software or website, either in whole or in part;
b. decompile, disassemble, convert the object code to source code,
c. distribute, assign, share, lease, lend, sell, resell, rent, sublet or otherwise transfer the software or website for your benefit.
5.3.
You are not allowed to reproduce, redistribute, duplicate, copy, remodel, change, disclose, distribute, republish, download, show, take screenshots, upload or transmit the material available on our platform in any case and in any way; nor the sale, resale or assignment of the use of the platform and the services, without the express written permission by us.
5.4.
Your use of third-party software or content downloaded from our platform does not transfer to you rights, titles or interests. In addition, you agree that you will not use any third-party software or content available to you via Smoolis unless expressly allowed under the terms of service or third-party license. If you do not agree to the terms of service or the third-party license agreement, do not download or use the third-party software or content.
5.5.
In the event of infringement of the Intellectual Property Terms, you must immediately delete any material obtained illegally.

6. User Content

6.1.
We do not claim any intellectual property rights over the content and material you provide to our Services. All content you upload ("User Content"), including without limitation text, photos, images, audio, video, code and any other materials, remains yours.
6.2.
You can remove your Smoolis site at any time by deleting your account. This will also remove all content you have stored on the Services.
6.3.
You retain ownership over all content that you submit to a Smoolis site, however, by making your site public, you agree to allow others to view your content; you agree to allow us to display and store it and you agree that we can, at any time, review all the content submitted by you to our Service.
6.4.
You take full responsibility for all taxes and fees of any nature associated with Services, including any sales tax related to the purchase or sale of commercial products.
6.5.
These Terms don't give us any rights to User Content, except for the limited rights that enable us to provide, improve, promote and protect the Services as described herein.
6.6.
You represent that you own all rights to your User Content or otherwise have all rights and permissions to legally use, share, display, transfer and license your User Content via our Services. If we use your User Content in the ways contemplated in the Terms, you represent that such use will not infringe or violate the rights of any third party, including without limitation any copyrights, trademarks, privacy rights, publicity rights, contract rights or any other intellectual property or proprietary rights. Content on the Services may be protected by others' intellectual property or other rights, so please don't copy, upload, download or share content unless you have the right to do so.
6.7.
We haven't reviewed and can't review all of the User Content made available via the Services. The Services may contain User Content:
a. that is offensive or objectionable;
b. that contains errors;
c. that violates intellectual property, privacy, publicity or other rights of third parties;
d. that is harmful to your computer or network; or
e. the downloading, copying or use of which is subject to additional terms and policies.
By operating the Services, we don't represent or imply that we endorse User Content provided therein, or that we believe such User Content to be accurate, useful or non-harmful. We're not a publisher of, and we're not liable for, any User Content uploaded, posted, published or otherwise made available via the Services. You're responsible for taking precautions to protect yourself, and your computer or network, from User Content accessed via the Services.

7. Contracts

7.1.
You may agree to a one (1) month or twelve (12) month contract agreement with Smoolis.
7.2.
Subscriptions are billed in advance on a monthly or yearly basis (as per the option chosen when you purchased such services) and are non-refundable for the subscription period they are purchased for. An invoice will appear on the Account page of your Smoolis admin area.
7.3.
Only Services and features clearly indicated as "free" are free or without charge. It is not our responsibility to provide free support for you in the use and operation of Smoolis.
7.4.
You're able to upgrade/downgrade your plan at any time. When you change your plan your billing cycle will change, and you'll immediately be refunded or charged the prorated difference. Note that you will need to remove some features (number of products, pages or languages) before being able to downgrade.
7.5.
If you registered for a trial use of our Services ("Trial Period"), you must decide to purchase the Services within the Trial Period in order to retain any content that you have posted or uploaded during the Trial Period. Once the Trial Period expires your Smoolis website will be taken offline. All of your content will be deleted within thirty (30) days from the Services.To be very clear, after using the Services during the Trial Period, if you decide not to purchase the full version of the Services, you will not be able to access or retrieve any of the data you added/created during the Trial Period.

8. Automatic Subscription Renewals

8.1.
At the end of the contract term, your contract will automatically renew for an additional contract term until explicitly cancelled by you. Your renewal period will be equal in time to the renewal period of your current subscription.
8.2.
To ensure uninterrupted service, we'll automatically bill you for our Services from the date you submit your initial payment and on each renewal period thereafter until cancellation.

9. Cancellations

9.1.
You're able to cancel the Service at any time. The charge will stop by the end of the current billing cycle. Fees paid in advance shall not be refunded upon termination of the contract or deletion of the site prior to the end of the contract period.
9.2.
Cancellation of the contract must be issued via your Smoolis admin area and must be done at least one (1) day prior to the end of the contract term (billing cycle).
9.3.
Once cancellation is confirmed your Smoolis website will be taken offline, all of your content will be deleted within thirty (30) days from the Services.
9.4.
We do not provide refunds when you close your site.

10. Fees and Payment

10.1.
All fees are in USD and inclusive of VAT for subscriptions within Switzerland. For all other countries the prices are shown without VAT. The VAT are based on the rates applicable to the billing address you provide to us. If you're exempt from taxes, you must provide us with a valid tax exemption certificate (we reserve the right to determine whether a certificate is valid). Tax exemption will only apply from and after the date we receive such certificate.
10.2.
You must maintain your billing address in the administration menu of your Smoolis admin area and promptly update your location if you move.
10.3.
You must keep a valid credit card on file with us to pay for all incurred and recurring fees. We will charge applicable fees to the credit card account that you authorize, and we will continue to charge the credit card (or any replacement card) for applicable fees until the Services are terminated, and any and all outstanding fees have been paid in full.
10.4.
If the payment card you provide expires and you do not provide new payment card information, you authorize us to continue billing you and you agree to remain responsible for any uncollected fees. Additionally, a fixed sum can be charged for the cost of recovering a late commercial payment.
10.5.
If we are not able to process payment of fees using the authorized card, we will make three (3) times attempts to process payment using the authorized card. If the fourth (4) attempt is not successful, we will make a final attempt one (1) day following the fourth attempt. If our final attempt is not successful, your Smoolis website will be taken offline automatically. Your account will be reactivated upon your payment of any outstanding fees. If the outstanding fees remain unpaid for thirty (30) days following the date of suspension, we reserve the right to terminate your subscription and delete all of your content.
10.6.
If you contact your bank or credit card company to decline, chargeback or otherwise reverse the charge of any payable fees to us ("Chargeback"), we may automatically terminate your account. Before filing a claim against us, you agree to try to resolve the dispute by first emailing legal@smoolis.com with a description of your claim. We'll try to resolve the dispute informally by following up via email, phone or other methods. If we can't resolve the dispute within thirty (30) days of our receipt of your first email, you or we may then bring a formal proceeding.
10.7.
We use a third-party payment processor (the "Payment Processor") to bill you through a payment account linked to your Account. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor, in addition to this Agreement. Our current Payment Processor is Stripe, and your payments are processed by Stripe in accordance with Stripe's Terms of Service and Privacy Policy. We don't control and are not liable for the security or performance of the Payment Processor. You agree to pay us, through the Payment Processor, all charges at the prices then in effect for any purchase in accordance with the applicable payment terms. You agree to make payment using the payment method you provide with your Account. We reserve the right to correct, or to instruct our Payment Processor to correct, any errors or mistakes, even if payment has already been requested or received
10.8.
We do not accept any liability for losses, damages or loss of revenue that may be caused by the blocking of a Smoolis website due to incomplete or delayed payment, as long as the failure or delay can be attributed to the user.

11. Third-party Applications

Our Services are integrated with various third-party services, applications and sites ("Third-Party Services") that may make available to you their content and products, such as domain and email services, or marketplaces to connect customers and vendors. These Third-Party Services may have their own terms and policies, and your use of them will be governed by those terms and policies. We don't control Third-Party Services, and we're not liable for Third-Party Services or for any transaction you may enter into with them. Your security when using Third-Party Services is your responsibility. You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third-Party Services. We're not liable to you for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses you may experience as a result thereof.

12. Limitation of Liability

12.1.
You expressly understand and agree that we or our suppliers shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses arising out of or in connection with the use of or inability to use the service (however arising including negligence).
12.2.
We bear no responsibility for any technical problems that may occur to users when they attempt to access our platform or during such an access and are related to the operation or compatibility of their own infrastructure using the platform.
12.3.
We are not responsible for any loss or damage caused by a denial of service attack, viruses or other malware or hardware that may harm the user's computer, accessories, data or any other material from the use of the platform or the uploading of material contained therein or similar material of another site referred to by the platform and in general for acts or omissions by third parties and in particular unauthorized interventions of third parties to products and/or services and/or information made available through the site.
12.4.
You are solely responsible for your conduct and the accuracy and appropriateness of all your data and content within your site, including: text, file, information, username, images, graphics, photos, profiles, audio and video clips, sounds, musical works, copyrighted works, applications, links, exchange rates and currency conversion, sales tax calculations, terms of service, returns and refund, product pricing and description, shipping calculations and charges, contact information, email communications, payment processing and any other content or material you submit, upload or show on or through our platform and your Smoolis account. You are solely responsible for the us will not be held responsible for inaccurate information and any potential damages caused by such inaccuracies. You further understand that we may not maintain copies of files or documents that are send by you and that you are solely responsible for backing up all your data.
12.5.
We may provide access to the content of third-party websites for information purposes only. We do not control any of these third-party websites or services and is unaware of the availability, content, personal data, privacy policy, quality and completeness, whether or not there are charges. You explicitly acknowledge and agree that our platform is not in any way responsible for such third-party websites or web services. Your interaction in any way with these third-party sites or web services is at your sole and absolute discretion and we are not responsible in that respect.
12.6.
We are not in any way liable to you or third parties for any loss or damage of any kind directly or indirectly related to it, its content, services or any of its applications or intellectual property rights, delay in the operation or transmission, or any kind of malfunction.
12.7.
For the avoidance of doubt, we do not act on your behalf, nor does it establish any partnership or consortium between us.

13. Warranty Disclaimer

13.1.
Your use of our Services is at your sole risk. The Service is provided on an "as is" and "as available" basis without any warranty or condition, express, implied or statutory.
13.2.
We do not warrant that the results that may be obtained from the use of our Service will be accurate or reliable.
13.3.
We do not warrant that our Services will be uninterrupted, timely, secure, or error-free.
13.4.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you through our Services will meet your expectations, or that any errors in the Services will be corrected or free from viruses or other harmful components.

14. Modification to the Services and Prices

14.1.
We reserve the right at any time to time to modify or discontinue, the Services (or any part thereof) with or without notice. Any new features or tools which are added to the current Services shall be also subject to the Terms of Service. If you disagree with our changes, then you should stop using the Services.
14.2.
Prices for using our Services are subject to change upon 14 days-notice from us. Such notice may be provided at any time by posting the changes to our site www.smoolis.com.
14.3.
We shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Services.

15. Termination

15.1.
We may terminate Services at any time, without penalty and without notice, if you fail to comply with any of the terms of this Agreement or the intellectual property protections applicable to these Services. Verbal or written abuse of any kind (including threats of abuse or retribution) of any Smoolis customer, Smoolis employee, member, or officer will also result in immediate account termination. Violation of any of these policies may result in user information tracking with such information being stored to identify the offending user. Offending users may be permanently restricted from holding an account or using the Services.
15.2.
Services may be terminated by you, without cause, by following the cancellation procedures set forth in section Account > Cancel subscription. Once your subscription is cancelled, its content is marked for permanent deletion after thirty (30) days.
15.3.
Without limiting any other remedies, we may suspend or terminate your account and erase your financial data if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in illegal or fraudulent activity in connection with the Site.

16. Written Communication

Under the current legislation, some of the information or updates we send you must be in writing. When you use our platform, you agree that communication with us will be mainly online. We will communicate with you by email or provide you with information by posting announcements on our platform. You agree to this online form of communication and acknowledge that all notifications, information and other communications we provide to you online are consistent with any legal requirement under which such communication must be made in writing. This term does not affect your legal rights.

17. Additional Terms

17.1.
Our failure to enforce any provision of these Terms is not a waiver of our right to do so later. If any provision of these Terms is found unenforceable, the remaining provisions will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under these Terms, and any such attempt will be void. We may assign our rights under these Terms to any of our affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.
17.2.
These Terms were originally written in English. We may translate these Terms into other languages. In the event of a conflict between a translated version and the English version, the English version will control.

18. Modifications to the Terms

18.1.
These Terms, together with any other expressly referenced document, constitute the complete agreement between us and the users in relation to the use of our Services, replacing any prior written or oral agreement, conciliation or settlement between us.
18.2.
We reserve the right to unilaterally modify, renew or cancel any term contained in these Terms, at any time and without sending prior notice to users.
18.3.
We shall inform users of any modifications and changes, via the platform or email or as otherwise required by law.
18.4.
Modifications and changes will never apply retroactively. By continuing to use or access our Services after any modifications come into effect, you agree to be bound by the modified Terms. If you disagree with our changes, then you should stop using our Services.
18.5.
It is your responsibility to read the Terms and the Privacy Policy at regular intervals, as the Terms and Privacy Policy in force at the time you use the platform are applicable.

19. Indemnification

To the fullest extent permitted by law, you agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, Smoolis partners, officers, directors, agents, and employees, harmless from and against all damages, losses and expenses of any kind (including without limitation reasonable attorneys' fees and costs) made by any third party arising out of or related to:
a. your breach of these Terms;
b. your User Content, your Sites and your eCommerce;
c. any claims from your End Users; and
d. your violation of any law or regulation or the rights of any third party.

20. Applicable Law and Jurisdiction

20.1.
The use of our platform is solely governed by Swiss law.
20.2.
Any dispute arising out of or relating to the use of the platform is subject to the exclusive jurisdiction of the Swiss courts and, in particular, those of Zürich.

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