Terms of Service

These Terms of Service are a legal agreement between you and Smile Workshop. They apply to Smile Workshop’s provision of and your use of the Smile Workshop’s content platforms, sites, applications and/or services.

Your access to the Services is permitted by Smile Workshop on the assumption that you have accepted these Terms, and in consideration for that acceptance. If you do not agree to the terms, you are not permitted to access the Services in any manner. If you do (whether you make use of them or not), you are deemed to have agreed to these Terms in their entirety. Your agreement with Smile Workshop includes any specific additional terms and policies that apply to any specific Services you use.

1 DEFINITION

Circumstance” means any fact, matter, circumstance or claim that occasions a Loss.

Content” means information consisting of text, graphics, pictures, video or other material that is uploaded and modified by Users when they are using the Services, and when it is uploaded and modified by you, it is your Content.

Owners” means the owners or licensors of Intellectual Property Rights in connection with any Content referred to or syndicated using the Services.

“Force Majeure Event” means any event beyond the control of the relevant party.

Intellectual Property Rights” means intellectual property rights conferred on a party or recognised at Law in any territory throughout the world including any rights associated with copyright, trademark, business name, patent, innovation concept, semiconductor, formula, trade secret, method, circuit layout, invention and any other results of intellectual activity in any field of industry or endeavour and includes any right to use an Intellectual Property Right owned by a third party where the terms of that right of use or licence permit a use of that Intellectual Property Right as contemplated under this document.

Law” means, with reference to any applicable jurisdiction, any statute, regulation, bylaw or a provision of a statute, regulation, or bylaw and includes, without limitation, any statutory rule, or ruling by a statutory body.

Smile Workshop” means Gurpreet Panesar Pty Ltd (ACN 600 937 817) trading as “Smile Workshop”.

Loss” means, in relation to any Circumstance, all losses, costs, damages, expenses, penalties, third party claims and other liabilities arising out of or in connection with that Circumstance and including all legal and other professional expenses on a solicitor client basis incurred in connection with investigating, disputing, defending or settling any claim, action, demand or proceeding relating to that Circumstance (including any claim, action, demand or proceeding based on the terms of these Terms) including but not limited to:

(a) all foreseeable loss from the Circumstance; and

(b) all consequential loss flowing from the Circumstance, including:

(i) lost profits;

(ii) funding shortfalls or refusals on the part of any funding body to provide funds due to the existence of the Circumstance;

(iii) all kinds of expenses incurred as a result of the Circumstance;

(iv) enforcement costs in any legal action against any other party that are required to:

(A) reduce further damage, breach or other infringements that may ensue from the Circumstance; or

(B) achieve restitution or compensation for the party affected by any ensuing breaches, infringements, losses or claims; and

(v) costs, expenses, or other quantifiable amounts that are not capable of being obtained, secured or recovered by the relevant party as a result of lost opportunities flowing from the Circumstance.

Services” means the online, web-based applications, mobile applications, platforms and/or websites provided by Smile Workshop from time to time via http://www.smileworkshop.com.au/ and any application store (including but not limited to the Apple App Store and the Android Market), other designated platforms or websites that are described to you from time to time, any services that are arranged by you direct with Smile Workshop and any associated offline components, but excluding:

(a) Third Party Services;

(b) components that are open source software components that are freely available to the public under licence terms that are different to the licence terms in this document; and

(c) components that are fonts that are freely available to the public under open font licence terms that are different to the licence terms in this document.

Terms” means this document.

Third Party Services” means online, web-based applications and offline software products that are:

(d) provided by third parties;

(e) interoperate with the Services; and

(f) may be either separate or conjoined with the Services,

whether or not they are identified to you by Smile Workshop as applications that are provided by third parties.

Users” means any users of the Services other than you.

you” means any party who accesses the Services, regardless of the nature of that access or if that party is or is not identified to Smile Workshop.

your User Account” means any device on which you have downloaded and/or installed the Services.

2 HOW TO READ THESE TERMS

2.1 Unless the context requires otherwise:

(a) a reference to a person includes a corporation or any other legal entity;

(b) the singular includes the plural and vice versa;

(c) headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;

(d) the term “includes” (or any similar term) means “includes without limitation”; and

(e) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.

3 THE SERVICES

3.1 License

Smile Workshop grants to you a personal, non-assignable, and non-exclusive license to use the Services in accordance with the Terms and the Privacy Policy. This license is granted for the sole purpose of enabling you to enjoy the features of the Services in the manner contemplated by the Terms and Privacy Policy and is not capable of sublicense without the Smile Workshop’s prior written consent.

3.2  Term

The Terms will continue in operation until terminated in one of the ways provided for in clause 8.

3.3 Content

You acknowledge that the Services consists of online applications that allow you to upload, create, edit, display, and view Content.

3.4 Use of Trade Marks and Material

While the Services are dedicated to the generation and appreciation of Content, you acknowledge that the majority of Content that is introduced using the Services may be subject to Intellectual Property Rights. You acknowledge that when viewing, modifying or re-posting Content in connection with the Services, your use of that Content must be in accordance with the relevant Owner’s directions (if any) that are issued by the Owner from time to time. In addition, you acknowledge that Smile Workshop does not warrant or represent that your use of the materials contained on the Services will not infringe the Intellectual Property Rights of third parties.

3.5 Use

You accept the following terms in respect of your use of the Services:

(a) After you have downloaded the application from the Apple App Store with Smile Workshop, you may use the Services to create, edit, display and view Content and interact with the material available through the Services.

(b) In order to create Content, you may upload data from any compatible device.

(c) Where you utilise images and material from a Third Party Service in connection with the Services, you do so at your own risk.

(d) Smile Workshop has the right to make any changes to the Services at any time including any action to modify, amend, suspend or discontinue all of or any part of the Services within Smile Workshop’s discretion and without notice.

(e) You are solely responsible for your Content.

(f) You acknowledge that your User Account is not a secure data storage facility for primary information that you wish to retain and that the Services do not provide for the storage of your Content. If you wish to keep your Content perpetually, you should take measures to ensure safe and secure storage of your Content.

3.6 Your Responsibilities

You are entirely responsible for:

(a) your access to the Services;

(b) your use of the Services;

(c) the appropriateness, accuracy, quality, and legal integrity of your Content;

(d) the means by which you acquired your Content; and

(e) ensuring that your use conforms with the Terms. You acknowledge that you may be required to have and maintain an internet or data connection in order to access the Services.

4 YOUR USER ACCOUNT WITH SMILE WORKSHOP

4.1 Your Responsibilities

You must operate your User Account in accordance with Smile Workshop’s directions and in particular, you agree to the following:

(a) Your User Account must only be operated by you on your own behalf. You must not operate your User Account on behalf of anyone else, including but not limited to an organisation that is not a natural person (Organisation). However, if Smile Workshop permits you to open a User Account on behalf of an Organisation, then:

(i) the word “you” in these Terms includes both you and the Organisation; and

(ii) you represent that you are authorised to represent the Organisation and that you have the authority to bind the Organisation to the Terms.

(b) If you connect the Services with a Third Party Service with which you have a user account, you authorise Smile Workshop to use information about you available from the Third Party Service and to store your user login information for that Third Party Service. Smile Workshop must not intentionally disclose that information to any other party unless Smile Workshop is required to do so by a Law. You can read more about what Smile Workshop may do with your information in the part of these Terms headed “Privacy Policy”.

(c) You agree that Smile Workshop may send you an email, push notifications or other electronic messages concerning your User Account, Smile Workshop and its commercial partners from time to time.

5 CONTENT

5.1 Your Responsibility for Content

You are responsible for any Content you introduce to the Services. You should be careful about what Content you choose to introduce, because you may not be able to delete Content after you have introduced it. You acknowledge that introducing Content on the Services does not constitute an act of registering that Content for copyright in any jurisdiction. You are also responsible for ensuring that the Content you introduce does not breach the Intellectual Property Rights of any third party.

5.2 Prohibited Content

Smile Workshop reserves its discretion to prohibit certain types of Content. You agree that you will not introduce Content that:

(a) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group;

(b) is violent or threatening or promotes self-harm;

(c) promotes harmful activities or substances in breach of any Law,

(d) infringes a third party’s intellectual property rights, or violates a third party’s rights of publicity or privacy;

(e) breaches any Law or would result in civil liability;

(f) is fraudulent, false, misleading or deceptive;

(g) is racist, defamatory, pornographic, offensive or vulgar; and/or

(h) is intended in any way to cause harm or an unacceptable level of detriment to another User.

5.3 Smile Workshop’s Rights in respect of Content

You acknowledge the following:

(a) Smile Workshop reserves the right to shift, categorise, delete or amend any Content as Smile Workshop sees fit. However, this does not constitute an obligation on Smile Workshop to any person to take any action whatsoever in respect of Content;

(b) If you own intellectual property rights in the Content you introduce that is not your personal, confidential information (Your Owned Content) to the Services, then you grant Smile Workshop an irrevocable, perpetual and worldwide licence (that is capable of sublicence) to use Your Owned Content solely for the purpose of promoting the Services in Smile Workshop’s discretion;

(c) You accept and acknowledge that Smile Workshop may possibly generate indirect income or commercial benefits for Smile Workshop by using Your Owned Content to promote the Services to Users or to other members of the public; and

(d) If you give Smile Workshop any feedback concerning the Services, you grant Smile Workshop a worldwide, exclusive, royalty-free licence to use any aspect of that feedback (including any information or consequence that follows from or is derived by Smile Workshop from that feedback) in any manner that Smile Workshop considers appropriate.

6 PROHIBITED ACTIONS

6.1 What’s not permitted?

Smile Workshop may suspend, ban or delete your use of the Services if:

(a) You lie or mislead Smile Workshop about your details, your Content, or any other User’s Content;

(b) You introduce Content that is introduced in breach of the Intellectual Property Rights of a third party. This includes any act of plagiarism or of divulging confidential information that you were obligated to protect;

(c) You act in a manner that results in detriment to Smile Workshop, other Users, or if you act in a manner that Smile Workshop considers to be unacceptable in view of generally accepted online etiquette or behavioural standards and policies;

(d) You are involved in any activity that constitutes scraping or replicating Content from the Services for the benefit of other platforms, engines or applications not connected to or approved by Smile Workshop, unless the purpose of that activity is for the purposes of assisting search engines or platforms containing public web navigation indexes;

(e) You attempt to hack into or cause damage to any facet of the Services, or you attempt to access information held by Smile Workshop that Smile Workshop does not intend to divulge to you;

(f) You attempt to sabotage the operation of the Services by overloading them with data;

(g) You attempt to compile, decompile, disassemble, replicate, licence or distribute any aspect of the Services in a manner not expressly approved by Smile Workshop; and/or

(h) You do not comply with something that Smile Workshop requires you to do.

7 PROPRIETARY RIGHTS

7.1 Reservation of Rights

Subject to the rights granted to you in the Terms, Smile Workshop reserves all other rights, title and interest in the Content and to the Services, including all Intellectual Property Rights in the Content and the Services. You acknowledge no Intellectual Property Rights are granted to you in the Terms other than the usage rights for the Services that are expressly described in the terms.

7.2 Restrictions

You must not:

(a) permit any third party to access the Services except as permitted in the Terms;

(b) copy, modify, create derivate works of, reverse engineer, decompile or otherwise attempt to extract the source code of the software in respect of the Services;

(c) copy, frame or mirror any part or content of the Licensed Services, other than copying or framing for your own personal reference;

(d) access the Services in order to build a competitive product or service;

(e) copy any features, functions or graphics of the Services; or

(f) act in a manner that is otherwise inconsistent with the Intellectual Property Rights of Smile Workshop.

8 TERMINATION

8.1 Smile Workshop’s Termination Rights

Smile Workshop can terminate these Terms at any time or for any reason, and prevent you from accessing the Services. Smile Workshop may retain your User information, Content you have introduced, or other information personal to you for the purposes of maintaining data integrity and retrieval. If the Terms are terminated by Smile Workshop, all of your obligations in these Terms that are intended to continue to remain binding on you.

8.2 Your Termination Rights

You can terminate these Terms at any time for any reason by ceasing your use of the Services. If you resume use of the Services at any stage after your termination, you indicate that you have re-accepted these Terms, and they will bind you and Smile Workshop accordingly.

9 PRIVACY

You must review Smile Workshop’s privacy policy (attached to these Terms and headed “Privacy Policy”) to ensure you know how you can make the best use of the Services without compromising your privacy.

10 LIABILITY AND INDEMNITY

10.1 Liability

(a) To the full extent permitted by the Australian Consumer Law contained in Schedule 2 of Competition and Consumer Act 2010 (Cth), Smile Workshop excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages (including due to negligence) incurred by you in relation to the provision of Services.

(b) To the full extent permitted by law, Smile Workshop excludes all representations or terms (whether express or implied) other than those expressly set out in the Terms.

(c) If the Services supplied under the Terms are supplied to you as a ‘consumer’ of Services within the meaning of that term in the Australian Consumer Law, Smile Workshop limits its liability in respect of all claims, at its option, to:

(i) the supply of the Services again; or

(ii) the payment of the cost of having the Services supplied again.

(d) You agree that Smile Workshop’s total aggregate liability for all claims relating to the Terms is limited to the $100.00.

(e) You agree to indemnify Smile Workshop in relation to all claims, actions, liabilities, costs and expenses (including legal costs on a full indemnity basis) resulting from Smile Workshop’s failure to comply with the Terms.

(f) You agree that you will continually indemnify Smile Workshop against any cost, loss, liability, or damage that the Smile Workshop incurs as a result of your use of the Services.

10.2 Indemnity

You indemnify Smile Workshop in respect of all Losses that Smile Workshop incurs as a result of your breach of these Terms.

10.3 Services not error-free

You acknowledge that the Services are being improved on a consistent basis, and as such are not error-free.

11 GENERAL

(a) You must not assign or otherwise deal in any other way with any of your rights under the Terms without the prior written consent of Smile Workshop.

(b) Nothing contained in the Terms creates any relationship of partnership, franchise, joint venture, agency, fiduciary, employment or agency between the parties.

(c) If a provision of the Terms is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.

(d) Each party must at its own expense do everything reasonably necessary to give full effect to the Terms and the events contemplated by it.

(e) The Terms (and any documents executed in connection with it) is the entire agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in the Terms, no party has relied on any representation made by or on behalf of the other. If the Terms or Smile Workshop’s policies are amended by Smile Workshop, the newer version of those documents will then supersede the prior version.

(f) Smile Workshop reserves the right to amend these Terms and its policies whenever Smile Workshop considers it necessary to do so within Smile Workshop’s reasonable discretion.   However, if Smile Workshop does so, Smile Workshop will notify you via its website and/or through the Apple App Store. You acknowledge and agree that it is your sole responsibility to familiarise yourself with the amended Terms. You agree that by continuing to use the Services you acknowledge and agree to the amended Terms.

(g) You acknowledge that there may be third-party beneficiaries to these Terms in circumstances where Smile Workshop is bound to enforce them in favour of its own licensors, Users or other parties contracting with Smile Workshop.

(h) A party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.

(i) Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects a party’s performance under this Agreement for more than thirty (30) consecutive days, the other party may immediately terminate this Agreement by written notice.

This Agreement is governed by the laws of New South Wales and each party submits to the jurisdiction of the courts of New South Wales.