Copyright 2016 Widen Enterprises, Inc. All rights reserved.
This Subscription Agreement and Terms of Service document is an agreement between Widen Enterprises, Inc. ("Widen") and you ("Agreement").
Please read this Agreement carefully. Its terms apply to the service named above, which includes the underlying software and other technology that make the service possible (collectively, "Service"). The terms also apply to any Widen updates, supplements, and support services for the Service, unless other terms accompany those items. If so, those other terms will apply.
BY USING THE SERVICE, YOU ACCEPT THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST NOT USE THE SERVICE.
This Agreement governs your access and use of the Service and its respective features, databases, data, compilations of data and documentation provided by Widen at http://www.SMARTIMAGE.com (the "Site"). Access to and use of the Site and the Service is intended for persons eighteen (18) years of age or older. By clicking on the "I Accept" button as part of the online registration and/or ordering process, you agree to be bound by the terms of this Agreement at all times with respect to your access to the Site and your use of the Service. You must not proceed to access the Site or use the Service if at any time you do not agree to the terms and conditions of this Agreement.
Subject to the terms and conditions of this Agreement, Widen grants to you a non-exclusive, non-transferable, limited, and revocable personal right and license to access and use the Service as made available by Widen at the Site, but for no other purpose. You acknowledge and understand that unless you enter into a Prepaid Subscription Agreement ("PSA") for access to and use of the Service, your license to access and use of the Site and Service is restricted and limited to only those features and functions provided at no charge (Section D below). All rights not herein expressly granted to you are hereby expressly reserved to Widen. No right, title or interest to the Site, the Service, or any trademark, service mark, trade name or domain name of Widen is granted to you under this Agreement.
Subject to the terms and conditions of the Brand Use Guidelines and End User License Agreement (the guidelines and license agreement together referred to as "Brand Use Guidelines") appearing on your Collection page you agree to grant a non-exclusive, non-transferable, limited, and revocable personal right and license to users of your Brand Elements (as defined in the Brand Use Guidelines) to access and publish your Brand Elements as permitted and restricted in the Brand Use Guidelines. You acknowledge that: (i) you have read, understand and agree to the terms of the Brand Use Guidelines, and (ii) you shall be solely responsible for enforcing the terms and conditions of the Brand Use Guidelines as against any user of your Brand Elements; provided however, that Widen will endeavor to assist your enforcement of the terms and conditions of the Brand Use Guidelines as against a user of your Brand Elements by providing the name and contact information for the user if such information is available to Widen.
To access and use the Service, you must either establish an account through our online registration process by providing a unique user name, unique password, preferred unique host name (URL prefix) where your Brand Elements will be stored, valid e-mail address, and other information (collectively "Registration Information") to become a free trial user ("Free User"), or provide the same Registration Information and enter into a PSA. You must choose a host name in accordance with naming conventions described below, as amended from time to time. Your selected host name must: (i) be available at the time you register with Widen, (ii) comply with Widen’s naming conventions, and (iii) not infringe on the intellectual property rights of another. In the event that Widen receives notice or a complaint that your selected host name infringes upon the intellectual property rights of another, Widen will determine in its best judgment and sole discretion whether your selected host name does infringe upon the intellectual property rights of another, and if such determination is made by Widen, you will be required to select a new host name. All decisions of Widen regarding infringing host names shall be, with respect to Widen, final and without liability to you or recourse by you.
You must choose a host name that is reflective of your organization's name, brand or trademark.
When submitting Registration Information, whether to become a Free User or to enter into a PSA, you agree to:
Use of the Service by Free Trial Users shall be limited as follows:
Use of the Service by users who HAVE entered into a PSA ("Paid Level User") shall be entitled to the following:
NOTICE: Uploading or transferring of unauthorized content (content for which you are not the original author, or if not the original author, for which you do not have full and proper authorization for use), abusive, pornographic, or other distasteful or illegal (whether deemed illegal under local, state, provincial, U.S. federal, or any other applicable law) content (collectively "Prohibited Content") to or through the Service is expressly prohibited. Widen reserves the right to delete any and all content which it deems, in its sole discretion and without user recourse, to be Prohibited Content, and further, to immediately terminate the right of any user (Free Trial User or Paid Level User) to access the Service upon Widen's discovery of the user's uploading or transferring of Prohibited Content to or through the Service.
If you elect the PSA option, you must provide a valid credit card number (including any required validation or authentication code). By providing your credit card number (including any required validation or authentication code), you agree to pay the monthly subscription fee specified in the online registration and order process. After your initial thirty (30) day paid subscription period, your PSA shall automatically renew for successive thirty (30) day periods, unless and until you provide us with notice of your intent to cancel your PSA via the delete account mechanism. If you elect to cancel your PSA, your cancellation shall be effective upon the date you confirm your account's deletion. We shall not be required to refund any portion of your monthly subscription fee for the remainder of the thirty (30) day period during which you terminate the Service (pro rata or otherwise), and you shall not be entitled to use the Service after the effective date of cancellation.
Upon your cancellation of the Service, you shall have no future access to data, collections, images, documents, or work product entered into or created with the Service prior to cancellation, and Widen reserves the right to delete such data, compilations, images, videos, or work product upon or after the effective date of cancellation.
The fee(s) for the Service do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with your purchases hereunder. If we have the legal obligation to pay or collect Taxes for which you are responsible under this section, the appropriate amount shall be invoiced to and paid by you.
Use of the Service is supported only for: (i) Windows and Mac operating systems; and (ii) Internet Explorer 10+ and latest browser versions for Google Chrome and Mozilla Firefox running in a Windows environment; and Apple Safari, Google Chrome and Mozilla Firefox running in a Mac environment. The Service may function satisfactorily on other operating systems or browsers/versions, but use of the Service on operating systems or browsers/versions other than those specified herein is not supported by Widen.
As a hosted service, availability of the Service is subject to variability of access, speed of access, and inaccuracies or errors in the transmission of data. Various conditions beyond Widen's control, including users' Internet connections, hardware and local conditions, as well as overall Internet traffic loads, make it impossible for Widen to estimate or guarantee any particular level of access or performance that users may expect. In the event that you are unable to access the Service consistently and for prolonged periods without interruption, we suggest that you contact Widen's Support function. Together we may be able to determine a fix for interrupted access to the Service, but the fix may involve contacting your Internet Service Provider (ISP) or replacing elements of your hardware. In the event that you experience unreasonably interrupted access to the Service, and we determine together that your Internet connection or other user-controlled factors are not responsible, as a PSA user, we will cancel your PSA and refund the subscription fee paid for the thirty (30) day period during which you experienced unreasonably interrupted access to the Service.
If Widen is unable to make the Site and/or Service available due to any force majeure event, meaning an act of God, act of governmental authority, act of public enemy, or due to war, riot, civil commotion, insurrection or any similar type cause, and such inability continues for a period of thirty (30) days or more, a PSA user shall have the right, upon notice to Widen at support@SMARTIMAGE.com, to terminate this Agreement, which termination shall be effective upon Widen's receipt of such notice. If a PSA user terminates this Agreement because of a force majeure event that makes the Site and/or Service unavailable, the PSA user shall be refunded that portion of paid subscription fees associated with the period during which the Site and/or Service were unavailable.
In addition, Widen reserves the right to terminate the Site and/or Service at any time, and for any reason, upon thirty (30) days' prior notice to users. Advance notice of such termination shall be provided to users at their registered e-mail address. In the event that termination of the Site and/or Service occurs during any thirty (30) day period of a PSA user's thirty (30) day term then in effect, such PSA user shall be refunded that portion of its paid subscription fee allocable to the number of days remaining in its thirty (30) day term from and after the effective date of termination of the Site and/or Service.
If as a Free User you do not access your account or content for a period of thirty (30) consecutive days, Widen reserves the right to delete any data, collection, images, documents or work product entered into or created with the Service without advance notice to you. Once deleted, your content will no longer be accessible or retrievable.
Support for the Service shall be provided through user inquiries to support@SMARTIMAGE.com or received via chat within the application. Widen shall endeavor to answer all e-mail and chat support inquiries within one (1) business day of receipt. Widen makes no representation or warranty with respect to its duty or obligation to fix or repair all deficiencies, errors, bugs, bad behaviors or inconveniences allegedly associated with the Service and brought to Widen's attention by users of the Service. Widen shall endeavor to remedy deficiencies, etc., that are: brought to its attention by a broad cross-section of users of the Service; and (ii) are remediable through commercially reasonable means or measures.
Widen reserves the right to change the terms and conditions of this Agreement without prior notice to you. You are responsible for reviewing the terms and conditions of this Agreement each time you access and use the Service. Your continued use of the Service constitutes your agreement to the then-current terms and conditions.
You agree that you will keep your personal password confidential and not allow any other person to use your personal username and password to access the Service. You agree to immediately notify Widen of any suspected disclosure of your personal password to an unauthorized person.
The Site may contain links to other web sites ("Third Party Sites") and content or materials originating from third parties ("Third Party Content"). Such links ("Third Party Links") are provided as a convenience to our users and customers only and do not imply approval or endorsement or any sponsorship or affiliation. Your use of Third Party Links, Third Party Sites, or Third Party Content is entirely at your own risk and exposure. Under no circumstances shall Widen be responsible for any Third Party Links, Third Party Sites, or Third Party Content.
You agree not to directly or indirectly: (i) redistribute, encumber, sell, rent, lease, lend, sub-lease, sublicense or otherwise transfer the Service, or the right to access and use the Service, to any third party without the express written consent of Widen; (ii) remove or obscure Widen's copyright, trademark and other proprietary rights notices, legends, symbols, marks, or labels; (iii) alter, modify, decompile, disassemble, create any derivative works of the Site or Service, including customization, translation or localization, or reverse engineer or otherwise attempt to derive the source code for the Site or Service; (iv) utilize the Service in connection with any service bureau or time-sharing system or to provide processing services for any third party; (v) allow any other person to access and use the Service via a LAN, WAN or other network of computers; (vi) use the Service or its aggregated data for the development of or in connection with a service application or service that has the same or substantially similar features and/or function as the Service; or (vii) use the Service for any unlawful purpose.
The Site and the Service and its databases and compilations of aggregated data, all copies thereof, and all associated trademarks are protected under United States Copyright Law, International Treaty, trade secret, trademark and other applicable laws. You agree not to copy, reproduce, publicly distribute, transmit or display the Site or the Service, or all or substantially all of the content of any database, without the express written consent of Widen.
You acknowledge and agree that Widen and its licensors (as applicable) are and shall remain the sole owner of all rights, title and interest in and to the Site and Service, all data created and/or collected through the use of the Site and/or Service, all derivatives thereof and all intellectual property rights related or pertaining to the aforesaid, including without limitation, all copyrights and inventions (whether patentable or not), even if you should provide data, suggestions, ideas, concepts, inventions, works of authorship, improvements or other intellectual property as a result of your use of the Site and/or Service. You further agree that you will not make any claim for, and do hereby expressly waive and release any right to, an accounting, compensation or other consideration of any kind arising from or related to any participation by you in the use, modification, or improvement of the Site and/or Service.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SITE, SERVICE, DATA AND INFORMATION ACCESSIBLE THROUGH THE USE OF THE SITE AND/OR SERVICE ARE PROVIDED "AS IS" WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. WIDEN EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Under all circumstances, your use of the Site and/or Service and its content, data, information and documentation shall be at your sole risk and exposure.
EXCEPT TO THE EXTENT PROHIBITED BY LAW, IN NO EVENT SHALL WIDEN, ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, CONTACTORS, AGENTS, SUCCESSORS OR ASSIGNS OR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE SERVICE AND/OR ITS CONTENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY PERSONAL INJURY OR DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR LOSS OF DATA OR PROPERTY) ARISING FROM OR RELATED TO THIS AGREEMENT AND/OR THE USE, RELIANCE ON OR TRANSFER OF ANY PROPERTY, SERVICE, INFORMATION OR DATA PROVIDED OR MADE ACCESSIBLE UNDER THIS AGREEMENT, EVEN IF WIDEN OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH INJURY OR DAMAGES.
You agree to indemnify and hold harmless Widen, its officers, directors, employees, representatives, successors and assigns from and against any claims, actions, demands, liabilities, settlements and damages, including without limitation, reasonable attorneys' fees and costs, arising from or related to your breach of this Agreement, including without limitation, your uploading or transferring of Prohibited Content to or through the Service and your unauthorized uploading of copyrighted content to or through the Service. In addition, you agree to hold Widen harmless from and against, and to indemnify Widen for, all fees and costs Widen incurs, including reasonable attorney fees, as a result of any dispute between you and any user of your Brand Elements involving authorized, unauthorized, proper or improper use of your Brand Elements.
If the Service is being accessed for use by or on behalf of the U.S. Government or by a U.S. Government contractor (at any tier), then the Government's rights in the Service and governing documentation will be only as set forth in this Agreement, in accordance with 48 CFR 227.7201 through 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 CFR 2.101 and 12.212 (for non-DOD acquisitions), as applicable. Unpublished rights are reserved under the copyright laws of the United States, Widen Enterprises, Inc., 6911 Mangrove Lane, Madison, Wisconsin 53713 USA.
If you are located outside the jurisdiction of the U.S., then the provisions of this Section shall apply to you: (i) this Agreement and all related documentation shall be in the English language; (ii) you are responsible for complying with any and all local, state, provincial and federal laws in your jurisdiction which might impact your right to import, export or use the Service; and (iii) you represent that: (a) you have complied with any and all regulations or registration procedures required by applicable law in order to make this Agreement valid and enforceable; (b) you are not a resident of Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, Syria or any other country subject to a U.S. trade sanction or embargo, an individual or entity controlled by such countries, or related in any way to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; and (c) you are not a named party or individual on the U.S. Department of Treasury, Office of Foreign Assets Control, list of Specially Designated Nationals and Blocked Persons, and/or the U.S. Department of Commerce, Bureau of Industry and Security Denied Persons List or Entity List.
You agree to comply with all export and import laws and restrictions and regulations of the United States and foreign countries, and not to use, import, export, or re-export the Service or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary authorizations. The Site may not be accessed by any resident of, nor the Service or underlying information or technology be used by, or exported or re-exported to (i) Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, Syria or any other country subject to a U.S. trade sanction or embargo, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) any named party or individual on the U.S. Department of Treasury, Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, and/or the U.S. Department of Commerce, Bureau of Industry and Security Denied Persons List or Entity List. By using the Service, Licensee agrees to the foregoing and represents and warrants that it is not located within a sanctioned or embargoed jurisdiction and is otherwise in compliance with these conditions.
Widen may immediately suspend access and use of the Site and/or the Service upon discovery of a material breach of this Agreement by you (or your employer, if applicable), whether as a Free User or PSA user, and terminate your access to and use of the Site and the Service. PSA users shall not be entitled to any refund of subscription fees paid if Widen terminates this Agreement because of the PSA user’s material breach.
If this Agreement is terminated for any reason, all provisions of this Agreement relating to Widen’s intellectual property and your obligation to indemnify Widen (Section R) shall survive termination and remain enforceable by Widen.
The validity, interpretation, and endorsement of this Agreement shall be governed by the laws of the State of Wisconsin, without giving effect to its conflict of laws principles. The United Nations Convention in the International Sale of Goods shall not apply to this Agreement and is hereby expressly excluded. A jury trial regarding any dispute between any parties is expressly waived by all parties. Should any provision of this Agreement be deemed invalid or unenforceable, the remaining portions shall remain valid and enforceable in accordance with the original intentions of the parties. The prevailing party in any action or proceeding to enforce the terms of this Agreement shall be entitled to an award of its reasonable attorneys' fees and costs. This Agreement contains the complete agreement between the parties with respect to the subject matter hereof. All previous and collateral agreements, representations, promises, and conditions relating to the subject matter of this Agreement are superseded by this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized officer of Widen. No provision of this Agreement may be waived except in writing signed by the party to be charged. No waiver of any default or violation shall constitute a waiver of any subsequent default or violation of the same or other provision. All notices and approvals given under this Agreement must be in writing and delivered in person, or by first class mail, express mail, facsimile with confirmation of transmission, or e-mail with return acknowledgment. Notice provided in accordance with this Section V will be deemed given when received. This Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns. This Agreement and the rights granted hereunder may not be assigned without the express written consent of Widen. The section headings of this Agreement are provided for purposes of convenience only and shall be of no effect in the interpretation or meaning of any provision.