Effective Date: June 29, 2021
DESCRIPTION OF SERVICE
2.2 The Digital Services are offered and available only to users who are at least thirteen (13) years old or, if applicable law requires that you must be older, then the minimum age under applicable law. The Digital Services are not for use by anyone (i) who is under the age of thirteen (13) (without verifiable parental consent), (ii) whose account has been terminated by us, or (iii) who has otherwise been restricted by us from using the Digital Services. The Digital Services are not designed nor intended for use by children or anyone else under the minimum age requirement. By using or attempting to use the Digital Services, you certify that you represent and warrant that you are of legal age to form a binding contract with SMIZE CREAM and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, do not access or use the Digital Services.
2.3 The Digital Services are operated in the United States. If you are located in the European Union, Canada, or elsewhere outside of the United States, please be aware that information we collect will be transferred to and processed in the United States. By using the Digital Services, or providing us with any information, you fully understand and unambiguously consent to this transfer, processing, and storage of your information in the United States, a jurisdiction in which the privacy laws may not be as comprehensive as those in the country where you reside and/or are a citizen.
USING THE SITES AND SERVICES
3.3 If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You are fully responsible for all activities under your account that you can reasonably control. You agree to promptly notify us of any unauthorized use of your username, password or other account information, or of any other breach of security that you become aware of involving your account or the Digital Services. We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time, in our sole discretion for any or no reason.
User Generated Content
4.1 The Digital Services may allow you to communicate, submit, upload or otherwise make available text, chats, images, audio, video, competition entries or other content (“User Generated Content”), which may be accessible and viewable by the public. Access to these features may be subject to age restrictions. You may not submit or upload User Generated Content that is defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive or that harms or can reasonably be expected to harm any person or entity, whether or not such material is protected by law.
4.2 You hereby grant to SMIZE CREAM SMP LLC and its affiliates, including its designees, licensees and assigns (herein, as “Grantee”) a worldwide, irrevocable, perpetual, transferrable, sublicensable, fully-paid, royalty-free, non-exclusive license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights for the full duration of those rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, transform, adapt, translate, delete from, add to, prepare and create derivative works from, publicly perform, publicly communicate, make available, and otherwise use and exploit your User-Generated Content, in whole or in part, in all media formats and channels now known or hereafter devised (including in connection with the Digital Services and on third-party sites and platforms), in any number of copies and without limit as to time, manner and frequency of use, without further notice to you, without attribution (to the extent this is not contrary to mandatory provisions of applicable law), and without the requirement of permission from or payment to you or any other person or entity. You agree that submission of User Generated Content does not establish any relationship of trust and confidence between you and us, and that you have no expectation of compensation whatsoever (except as may be specifically stated in the provisions of the Digital Services in the connection with the submissions, or arising from it).
4.3 You represent and warrant that your User Generated Content conforms to these terms and that you own or have the necessary rights and permissions including, without limitation, all copyrights, music rights and likeness rights (with respect to any person) contained in the User Generated Content, without the need for payment to any other person or entity, to use and exploit, and to authorize us to use and exploit, your User Generated Content in all manners contemplated by these terms. You agree to indemnify and hold us and our subsidiary and affiliated companies, and each of their respective employees and officers, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against us by any third party arising out of or in connection with our use and exploitation of your User Generated Content resulting from your breach of any warranty, representation or other provision of these terms or any applicable supplemental terms. You also agree not to enforce any moral rights, ancillary rights or similar rights in or to the User Generated Content against us or our licensees, distributors, agents, representatives and other authorized users, and agree to procure the same agreement not to enforce from others who may possess such rights.
4.4 To the extent that we authorize you to create, post, upload, distribute, publicly display or publicly perform User Generated Content that requires the use of our copyrighted works, we grant you a non-exclusive license to create a derivative work using the specifically referenced copyrighted works as required for the sole purpose of creating the materials, provided that such license shall be conditioned upon your assignment to us of all rights worldwide in the work you create for the duration of copyright in the User Generated Content, in all formats and media known or unknown to date, including for use on Digital Services and on third party sites and platforms. If such rights are not assigned to us, your license to create derivative works using our copyrighted works shall be null and void.
4.5 We may monitor, screen, post, remove, modify, store and review User Generated Content or communications sent through the Digital Services, at any time and for any reason, including to ensure that the User Generated Content or communication conforms to these terms, without prior notice to you. We are not responsible for, and do not endorse or guarantee, the opinions, views, advice or recommendations posted or sent by users.
4.6 You acknowledge and agree that all content on the Digital Services, including, but not limited to, text, data, graphics, photographs, illustrations, logos, trademarks, trade names, service marks, button icons, images, audio clips, video clips, links digital downloads, data compilations, and software (collectively herein as the “Content”) is owned, controlled by, or licensed to SMIZE CREAM and is protected by United States and international intellectual property or proprietary rights laws. Content on the Digital Services is made available solely for your personal, non-commercial use and may not be copied, reproduced, republished, modified, uploaded, posted, transmitted, or distributed in any way, including by e-mail or other electronic means, without the express prior written consent of SMIZE CREAM in each instance. You may download material intentionally made available for downloading from the Digital Services only for your personal, non-commercial use only, provided that you keep intact any and all copyright and other intellectual property rights notices that may appear on such materials. You may not:
(a) copy, reproduce, edit, modify, create derivative works of, distribute, make available, display, sell, publish, broadcast, circulate, use, store, or transfer, in any form or medium, any portion of the Digital Services or any Content (or any part thereof) provided in connection with the Digital Services, nor permit any third party to do the same, except as expressly authorized by us;
(b) reproduce, distribute, or use any Content or any derived Content in any commercial news or information service, nor permit any third party to do the same;
(c) delete or alter any copyright, trademark, or other intellectual property or proprietary rights notices from any Content provided in connection with the Digital Services;
(d) reverse engineer, decompile, disassemble, or otherwise attempt to derive any source code for any portion of the Digital Services; or
(e) download more Content than reasonably necessary for the purposes described herein.
4.8 SMIZE CREAM, and all related names, logos, products and service names, designs and slogans are trademarks of SMIZE CREAM or its licensors. You may not use any of the foregoing without the prior written permission of SMIZE CREAM. All other names, logos, product and service names, designs, and slogans on the Digital Services are the trademarks of their respective owners.
MONITORING AND ENFORCEMENT. We have the right to:
(a) disclose your identity or other information if we believe disclosure is necessary or appropriate to protect the rights, property, or safety of SMIZE CREAM, our customers, or others;
(b) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Site; or
6.2 You agree not to, and will not assist, encourage, or enable others to use the Digital Services to:
(a) promote any material that is knowingly false or defamatory, inaccurate, abusive, vulgar, obscene, profane, hateful, harassing, sexually oriented, threatening, or invasive of anyone’s privacy;
(b) violate any applicable federal, state, provincial, local or international law or regulation;
(c) violate a third-party’s copyright or other intellectual property rights;
(d) introduce any information or software that contains a virus, worm, defect, Trojan horse, or another item of a harmful, disruptive, or deleterious nature;
(e) engage in commercial activity (including, but not limited to, sales, contests, or sweepstakes) without SMIZE CREAM’s prior written consent;
(f) solicit, request, or collect personal information for commercial or unlawful purposes;
(g) exploit or harm minors in any way by exposing them to inappropriate Content, asking for personally identifiable information, or otherwise;
(h) send bulk emails, surveys, or other mass messaging whether commercial in nature or not;
(i) engage in keyword spamming, or otherwise attempt to manipulate the search results for the Digital Services; or
(j) impersonate or attempt to impersonate SMIZE CREAM or any other individual or entity.
6.3 You also agree not to, and will not assist, encourage, or enable others to:
(a) restrict or inhibit any other user from using and enjoying the Digital Services (for example, by means of hacking or defacement);
(b) utilize any robot, spider, site search/retrieval application, or other automated device, process, or means to access, retrieve, scrape, or index any portion of the Digital Services;
(c) remove or modify any copyright, trademark, or other intellectual property rights notice that appears on any portion of the Digital Services or on any materials printed or copied from the Digital Services;
(d) record, process, or mine information about other users;
(e) reformat or frame any portion of the Digital Services;
(f) take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on SMIZE CREAM’s technology infrastructure or otherwise make excessive traffic demands of the Digital Services;
(g) attempt to gain unauthorized access to the Digital Services, user accounts, computer systems or networks connected to the Digital Services through hacking, password mining, or any other means;
(h) use any device, software, or routine that interferes with the proper working of the Digital Services, or otherwise attempt to interfere with the proper working of the Digital Services;
(i) use the Digital Services to violate the security of any computer network, crack passwords or security encryption codes;
(j) disrupt or interfere with the security of, or otherwise cause harm to, the Digital Services; or
(k) remove, circumvent, disable, damage, or otherwise interfere with any security-related features of the Digital Services, features that prevent or restrict the use or copying of Content on the Digital Services, or features that enforce limitations on the use of the Digital Services.
6.4 If, for any reason, you create any derivatives, modifications or improvements to the Content ("Derivatives"), all right, title and interest (including existing and future intellectual property rights) in such Derivatives ("Derivative Rights") vest in Grantee immediately upon creation. You hereby assign to Grantee with full title guarantee all right, title and interest in all such Derivative Rights. You represent and warrant that use by SMIZE CREAM or its licensees of the Derivative Rights will not infringe the intellectual property rights or other rights of any third party. You must do all things and sign all documents necessary or desirable to give effect to this paragraph, and you provide us with irrevocable attorney in fact powers to sign any and all such documents on your behalf in the event you fail to do within five (5) business days of our request for your signature.
MOBILE DEVICES & THIRD-PARTY RESTRICTIONS
If you access our Digital Services on mobile devices, you understand that your mobile carrier’s standard charges will apply.
LINKS FROM THE SITE. The Digital Services may contain hyperlinks to other websites, webpages, or applications (“Third-Party Sites”), as well as to text, graphics, videos, images, music, sounds, and information belonging to or originating from other third-parties (collectively, “Third-Party Applications”). Unless otherwise noted, SMIZE CREAM does not operate, control, or endorse any information, products, or services on Third-Party Sites or Third-Party Applications. If the Digital Services contains links to Third-Party Sites or Third-Party Applications, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. You agree that we are not responsible for the availability or contents of any Third-Party Sites or Third-Party Applications, that your use of any Third-Party Sites and Third-Party Applications is at your own risk and subject to the terms and conditions of use for the applicable Third-Party Sites and Third-Party Applications, and that we accept no responsibility for them or for any loss or damage that may arise from your use of them.
11.1 You understand that we cannot and do not guarantee or warrant that the Digital Services or any Content provided in connection with the Digital Services will be secure or free from bugs or viruses. You are responsible for configuring your information technology, computer programs and platform to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Digital Services for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE, ACCESS, OR DOWNLOADING ANY CONTENT, OR ON ANY WEBSITE LINKED TO IT.
11.2 THE SITES AND SERVICES ARE MADE AVAILABLE TO YOU ON AN “AS IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE” BASIS. SMIZE CREAM EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOUR USE OF THE SITES AND SERVICES IS AT YOUR OWN DISCRETION AND RISK. THE INDEMNIFIED PARTIES EXPRESSLY DISCLAIM ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, QUALITY, ACCURACY, OR RELIABILITY OF THE SITES AND SERVICES, THE SAFETY OR SECURITY OF THE SITES AND SERVICES, OR THE CONTENT.
11.3 THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY
12.1 IN NO EVENT WILL THE INDEMNIFIED PARTIES BE LIABLE TO YOU FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE THE SITE, ANY WEBSITES LINKED TO THE SITE, OR ANY CONTENT PROVIDED IN CONNECTION WITH THE SITE OR SUCH OTHER WEBSITES, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SITE, RELATED SERVICES OR ANY THIRD-PARTY SITE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF, THE SITE.
12.2 TO THE EXTENT THE FOREGOING IS UNENFORCEABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, COSTS, LOSSES, AND CAUSES OF ACTION IN THE AGGREGATE (WHETHER IN CONTRACT, TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY, OR PRODUCT LIABILITY) AND WHETHER OR NOT WE WERE OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE ARISING FROM THESE TERMS OR USE OF ANY SERVICE EXCEED, IN THE AGGREGATE, $100.00.
12.3 THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
12.4 SMIZE CREAM MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING HOW OFTEN THE MATERIALS OR INFORMATION POSTED ON THE SITES AND SERVICES WILL BE UPDATED (IF AT ALL) OR THE NUMBER OR IDENTIFICATION OF THE INDIVIDUALS (IF ANY) THAT WILL BE FEATURED ON THE SITE.
VOID WHERE PROHIBITED. Although the Digital Services are accessible worldwide, not all products or services discussed or referenced on the Digital Services are available to all persons or in all geographic locations. SMIZE CREAM reserves the right to limit, in its sole discretion, the provision and quantity of any product or service to any person or geographic area it so desires. Any offer for any product or service made on the Digital Services is void where prohibited.
MAKING PURCHASES. If you wish to purchase products or services described on the Digital Services, you may be asked to supply certain information including credit card or other payment information. By initiating a transaction, you warrant and represent that, you (i) are eighteen (18) years old or older and (ii) have the legal right to use the payment means you select. You agree that all information that you provide will be accurate, complete, and current. You agree to pay all charges, including shipping and handling charges, incurred by users of your credit card or other payment mechanism at the prices in effect when such charges are incurred. You will also be responsible for paying any applicable taxes relating to your purchases. SMIZE CREAM will be entitled to change the pricing and availability of any particular product(s) or service(s) without prior notice at any time.
LINKING TO THE SITES AND SERVICES AND SOCIAL MEDIA FEATURES
15.1 You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express written consent.
15.3 You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.
15.4 You must not:
(a) cause the Digital Services or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking, or in-line linking, on any other site; or
15.5 The Digital Services may provide certain social media features that enable you to:
(a) link from your own or certain third-party websites to certain Content on the Digital Services;
(b) send e-mails or other communications with certain Content, or links to certain Content, on the Site; or
(c) cause limited portions of Content on the Digital Services to be displayed or appear to be displayed on your own or certain third-party websites.
You may use social media features solely as they are provided by us and solely with respect to the Content they are displayed with, and otherwise in accordance with any additional terms and conditions we provide with respect to such features. We may disable all or any social media features and any links at any time without notice in our sole discretion.
Applicable Laws; Binding Arbitration and Class Action Waiver
17.2 PROCEEDINGS TO RESOLVE OR LITIGATE A DISPUTE IN ANY FORUM WILL BE CONDUCTED ON AN INDIVIDUAL BASIS. Neither you nor SMIZE CREAM will seek to have a dispute heard as a class action or private attorney general action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitrations or proceedings.
CLAIMS OF COPYRIGHT INFRINGEMENT
Claims of Copyright Infringement
Notifications of claimed copyright infringement and counter notices must be sent to our designated agent:
SMIZE CREAM SMP LLC
10960 Wilshire Blvd, 5th Floor
Los Angeles, CA 90026
We will respond expeditiously to claims of copyright infringement committed using the Digital Services that are reported to our Designated Copyright Agent, identified above, in accordance with the U.S. Digital Millennium Copyright Act of 1998 (“DMCA”) or, as applicable, other laws. With respect to our Digital Services, these notices must include the required information set forth in the DCMA and you must provide the following information:
Identify the work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work;
Identify the Content that you believe to be infringing your intellectual property rights and its location. Please describe the Content, and provide us with its URL or any other pertinent information that will allow us to locate the Content;
Provide your name, address, telephone number, and (if available) email address;
Provide a statement that you have a good faith belief that the complained-of use of the work is not authorized by the intellectual property rights owner, its agent, or the law;
Provide a statement that the information you have supplied is accurate, and indicating that “under penalty of perjury,” you are the intellectual property rights owner or authorized representative of the intellectual property rights owner; and
Provide a signature or the electronic equivalent from the intellectual property rights owner or authorized representative of the intellectual property rights owner.
In an effort to protect the rights of intellectual property rights owners, SMIZE CREAM maintains a policy for the termination, in appropriate circumstances, of users of the Digital Services who are repeat infringers.
No Reliance on Information. The material and Content on the Digital Services are provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content on the Digital Services. Although SMIZE CREAM make reasonable efforts to update the information on the Digital Services, SMIZE CREAM make no representations, warranties or guarantees, whether express or implied, that the information and/or Content on the Digital Services is accurate, complete or up-to-date.
UNSOLICITED SUBMISSIONS. SMIZE CREAM does not accept unsolicited submissions of any kind through the Digital Services (e.g., materials, ideas, suggestions, know-how, or concepts, other than those expressly sought through permitted use of the Digital Services) or otherwise. In connection with anything you submit to us, whether or not solicited by us, you agree that all submissions of any kind are not being made in confidence or trust and that no confidential or fiduciary relationship is intended or created between you and us in any way, and that you have no expectation of review, compensation or consideration of any type. All submissions may be deleted unread or destroyed, at our discretion.
NOTICE FOR CALIFORNIA USERS. Under California Civil Code Section 1789.3, California Digital Services users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.