Terms Of Use – Real Smile

Our Terms of Use was last revised on February 11th 2016.

Welcome to Real Smile, a mobile application, a website and online services (hereinafter together referred to as “the Services”) owned and operated by Real Smile B.V. “Real Smile” “we”, or “us”.

Our contact details are:

Real Smile B.V.
Vredenhofweg 1948
1051 LL Amsterdam
The Netherlands
info@realsmileapp.com

+31626301085

CoC number: 60639431

Please Contact us at info@realsmileapp.com with any questions regarding this Terms of Use.

This page explains the terms by which you may use our Services. The Services are subject to the Terms of Use. By downloading the Real Smile App and/or using the Services, you declare that you have read, understood, and agree to be bound by this Terms of Use.

We reserve the right to amend our Terms of Use at any time and without notice. If we do this, we will post the amended Terms of Use on our website and under the tab “Privacy Policy”, in which policy you find a link to the Terms of Use. Your continued use of the Services after any such changes constitutes your acceptance of the new Terms of Use. If you do not agree to any of these terms or any future Terms of Use, do not use the Services. Our Terms of Use apply to all visitors, users, and others who download the Real Smile App and/or use the Services (“Users”).

  1. 1. Use Of Our Services

    1. 1.1. With the Real Smile App you can turn your own face into an emoticon, or as we call it, a ‘Realemoticon’. A chat conversation is so much more fun when you can express your emotions like that! To your created face you can add all sorts of characteristics, such as: a moustache, beard, harts in your eyes or tears from your eyes. You can also upload a ‘normal’ photo into the Real Smile App, which you can adjust in different ways, and for example use it as your background.
    2. 1.2. When you start using the Services, you need to register with Real Smile by entering your phone number. You then receive a confirmation code through sms, after which you can finalize your registration. After the confirmation you have access to our Services.
    3. 1.3. After downloading the Real Smile App, Real Smile grants you permission to use the Services as set forth in our Terms of Use, provided that you do not use our Services other than what is reasonably part of the purpose of the Real Smile App. You will not use the Services in an immoral or obscene way, or in a way that is in conflict with any statutory provisions. It is for example not allowed to use the Real Smile App to propagate your hatred against something or someone, or to spread pornography. Nota Bene: you will also otherwise comply with the terms and conditions of our Terms of Use.
    4. 1.4. No person may ever use another person’s Realmoticons and/or pictures without permission. You are solely responsible for your activity on our Services and the authorized or unauthorized use of your Realmoticons and/or pictures. You must notify Real Smile immediately of any breach of security or unauthorized use of your Realmoticons and/or pictures. Although Real Smile will not be liable for your losses caused by any unauthorized use of your Realmoticons and/or pictures, you shall be liable for the losses of Real Smile or others due to such unauthorized use.
    5. 1.5. You agree not to use or launch any automated system, including but not limited to “robots”, “spiders”, “offline readers”, etc. on our Services. You agree not to collect or harvest any personally identifiable information from the Services. You agree not to use any part of the Services as a destination linked from any unsolicited bulk messages or unsolicited commercial messages.
    6. 1.6. Real Smile may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Services without notice and liability, if, in Real Smile’s sole determination, you violate any provision of the Terms of Use, including but not limited to the following prohibited actions:
      1. (i) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services;
      2. (ii) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
      3. (iii) uploading invalid data, viruses, worms, or other software agents through the Services;
      4. (iv) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud,
      5. (v) interfering with the proper working of the Services; or
      6. (vi) bypassing the measures we may use to prevent or restrict access to the Services; or
      7. (vii) causing any kind ofloss or damage to the Services, to the Realmoticons and/or pictures of other Users, or to Real Smile B.V. Upon termination for any reason, you continue to be bound by our Terms of Use.
    7. 1.7. If you learn that a User violates our Terms of Use, we encourage you to notify us. You agree you will not accuse any User of violating our Terms of Use unless you have actual knowledge of the violation.
    8. 1.8. Real Smile reserves the right to offer additional functionality in the future. You acknowledge that Real Smile may charge a(n additional) fee for the use of that functionality.
  2. 2. Eligibility

    1. 2.1. If you are under 16 years of age you may use the Services only if you possess consent of your parent or guardian. Any User must be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in ourTerms of Use, and to abide by and comply with our Terms of Use.
  3. 3. User Content

    1. 3.1. Some areas of the Services may allow Users to post feedback, comments, questions, data, Realmoticons and/or pictures and other information (“User Content”), for example on the website. You are solely responsible for the User Content that you upload, publish, display, link to or otherwise make available (hereinafter, “post”) through the Services, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content.
    2. 3.2. Real Smile will not review, share, distribute, or reference any such User Content except as provided in the Terms of Use or in our Privacy Policy or as may be required by law.
    3. 3.3. When Users post Realmoticons and/or pictures on our website the rights of use, in the broadest sense of the word, of the Realmoticons and/or pictures including copying and changing the pictures, are licensed to Real Smile. The User accepts that Real Smile can use the Realmoticons and/or pictures in any way it choses, without it ever being necessary to ask the consent of the User, even when the User is no longer User of the Services.
    4. 3.4. You agree not to post User Content that:
      1. (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you or to any other person,
      2. (ii) may create a risk of any other loss or damage to any person or property;
      3. (iii) may constitute or contribute to a crime or tort;
      4. (iv) contains any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libellous, threatening, or otherwise objectionable;
      5. (v) contains any information or content that is illegal;
      6. (vi) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or
      7. (vii) contains any information or content that you know is not correct and current. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including but not limited to any Intellectual Property Rights (as defined below), rights of publicity and privacy. You understand that publishing your User Content through the Services is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other international or national Intellectual Property Rights organization.
    5. 3.5. For the purposes of our Terms of Use, “Intellectual Property Rights” means all patent rights, copyright rights, unregistered and registered design rights, mask work rights, moral rights, rights of publicity, trademark rights, trade dress and service mark rights, tradename rights, portrait rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
    6. 3.6. Real Smile takes no responsibility and assumes no liability for any User Content that you or any other Users or third parties post or send through the Services. You understand and agree that loss or damage of any kind that occurs as a result of the use of any User Content that you send, upload, download, stream, post, transmit, display, or otherwise make available or access through your use of the Services, is solely your responsibility.
    7. 3.7. Real Smile is not responsible for any public display or misuse of your User Content. You understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, or objectionable, and you agree that Real Smile shall not be liable for any damages you allege toincur as a result of such User Content.
    8. 3.8. You are solely responsible for your interactions with other Real Smile Users. We reserve the right, but have noobligation, to monitor disputes between you and other Users.
  4. 4. Real Smile Administration

    1. 4.1. Real Smile has administrators who are overseeing the use of, and monitoring the content shared through the Services.This does not mean in any way that Real Smile is liable for the use by or behaviour of the Users. The Users of the Real Smile Services are responsible for conducting themselves in accordance with our Terms of Use.
    2. 4.2. Users are obligated to follow the policies, guidelines and procedures posted on the Services. When these policies, guidelines and procedures however contradict with our Terms of Use, the obligations in our Terms of Use always prevail.
    3. 4.3. Users may report User Content. The reporting of a User Content will result in the Real Smile’s staff checking that specific piece of User Content and removing it in case it violates any of the rules described above in ‘User content’ and in our Terms of Use.
    4. 4.4. Real Smile can always remove any content including your User Content when it is – to the sole discretion of Real Smile – in contradiction with our Terms of Use.
  5. 5. License Grant

    1. 5.1. Subject to our Terms of Use, you are hereby granted a non-exclusive, limited, personal license to use our Services. Real Smile reserves all rights not expressly granted herein in the Services and the Real Smile Content (as defined below). Real Smile may terminate this license at any time for any reason or no reason.
  6. 6. Our Proprietary Rights

    1. 6.1. Except for your User Content, the Services and its materials, including but not limited to: software, images,text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos and music (the “Real Smile Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Real Smile and its licensors.
    2. 6.2. Except as explicitly provided herein, nothing in our Terms of Use shall be deemed to create a license (other than stated in these Terms of Use) in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Services. Use of the Real Smile Content or materials on the Services for any purpose not expressly permitted by ourTerms of Use is strictly prohibited.
    3. 6.3. You may choose to or we may invite you to submit comments or ideas about the Services, including but not limited to: about how to improve the Services. By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Real Smile under any fiduciary or other obligation, that we are free to disclose the Ideas on a non-confidential basis to anyone or otherwise use the Ideas without any additional compensation toyou.
    4. 6.4 You acknowledge that, by acceptance of your submission, Real Smile does not waive any rights to use similar or related ideas previously known to Real Smile, or developed by its employees, or obtained from sources other than you.
  7. 7. Privacy, Third-Party Websites, Advertisers Or Services

    1. 7.1. We care about the privacy of our Users. Click here to view our Privacy Policy . By using the Services, you are consenting to have your personal data transferred to and processed in the Netherlands or in a country in Europe.
    2. 7.2. Real Smile commits not to sell your personal data to any third party, here included your personal interaction with the Services.
    3. 7.3. Real Smile may contain links to third-party websites, advertisers, or services that are not owned or controlled by Real Smile. Real Smile has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites or services. If you access a third party website through the Services, you do so at your own risk, and you understand that our Terms of Use and Real Smile’s Privacy Policy do not apply to your use of such sites. You expressly relieve Real Smile from any and all liability arising from your use of any third-party website or services or third party owned content.
    4. 7.4. Additionally, your dealings with or participation in promotions of advertisers found on the Services, includingpayment and delivery of goods, and any other terms (such as warranties) aresolely between you and such advertisers. You agree that Real Smile shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
    5. 7.5. We strongly recommend you to be aware of the above when you leave our Services, and to read the terms and conditions and privacy policy of any third-party website or service that you visit.
  8. 8. Security

    1. 8.1. We have implemented commercially reasonable technical and organizational measures designed to secure your personal information and User Content from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information and User Content forimproper purposes. You acknowledge that you provide your personal information at your own risk.
  9. 9. Additional Representations And Warranties

    1. 9.1. You shall be solely responsible for your own User Content and the consequences of sharing or publishing it. In connection with User Content, you affirm, represent and warrant, in addition to the other representations and warranties in our Terms of Use, the following:
      1. a. You have the consent of each and every identifiable natural person in the picture that you distribute, to use such person’s data, and each such person has released you from any liability that may arise in relation to such use.
      2. b. You have the full power and authority to enter into our Terms of Use and to theextent that any entity is bound hereby, to bind such entity; our Terms of Use and the performance of obligations under our Terms of Use do not and will not violate any other agreement to which you or such entity is a party; andthis Agreement constitutes a legal, valid and binding obligation of you or any such entity.
  10. 10. Indemnity

    1. 10.1. You agree to defend, indemnify and hold harmless Real Smile and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from:
      1. (i) your use of and access to the Services, including but not limited to any data and/or Realmoticons and/or pictures transmitted or received by you;
      2. (ii) your violation of any term of our Terms of Use, including but not limited to your breach of any of therepresentations and warranties above;
      3. (1. iii) your violation of any third-party right, including but not limited to any right of privacy, publicity rights or Intellectual Property Rights;
      4. (iv) your violation of any law, rule or regulation of the Netherlands or any other country;
      5. (v) any claim or damages that arises as a result of any of your User Content or any content that is submitted through our Services; or
      6. (vi) any other party’s use of the Services.
  11. 11. No Warranty

    1. 11.1. The Services are provided on an “as is” and “as available” basis. Use of the Services is at your own risk.
    2. 11.2. The Services are provided without warranties of any kind, whether explicit or implied, including but not limited to; implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Without limiting theforegoing, Real Smile, its subsidiaries, and its licensors do not warrant that the content is accurate, reliable or correct; that the Services will meet your requirements; that the Services will be available at any particular time orlocation, uninterrupted or secure; that any defects or errors will be corrected; or that the Services are free of viruses or other harmful components.
    3. 11.3. Any content downloaded or otherwise obtained through the use of the Services isdownloaded at your own risk and you will be solely responsible for any damage to your or a third party’s computer system or other devices, such as a phone, a tablet, etc. or loss of data that results from such download.
    4. 11.4. Real Smile does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Services or any hyperlinked website or service, or featured in any banner or other advertising, and Real Smile will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
  12. 12. Limitation Of Liability

    1. 12.1. To the maximum extent permitted by applicable law, in no event shall Real Smile, its affiliates, directors, employees or its licensors be liable for any direct, indirect, punitive, incidental, special, consequential or exemplary damages, including but not limited to damages for loss of profits, goodwill, use, data or other intangible losses, that result from the use of, or inability to use, our Services. Under no circumstances will Real Smile be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Services or the information contained therein.
    2. 12.2. To the maximum extent permitted by applicable law, Real Smile assumes no liability or responsibility for any
      1. (i) errors, mistakes, or inaccuracies of content;
      2. (ii) personal injury or property damage of any nature resulting from your access to and use of our Services;
      3. (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein;
      4. (iv) any interruption or cessation of transmission to or from the Services;
      5. (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our Services by any third party;
      6. (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through the Services; and/or
      7. (vii) User content or the defamatory, offensive, or illegal conduct of any third party.
    3. 12.3. In no event shall Real Smile, its affiliates, directors, employees, or licensors be liable to you for any claims, proceedings, liabilities,obligations, damages, losses or costs in any amount.
    4. 12.4. This limitation of liability sectionapplies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if Real Smilehas been advised of the possibility of such damage. The foregoing limitation of liability shall apply to the fullest extent permitted by law in the Netherlands.
    5. 12.5. The Services are controlled and operated from its facilities in the Netherlands. Real Smile makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with local law, including but not limited to export and import regulations. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the Netherlands.
  13. 13. Assignment

    1. 13.1. Our Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Real Smile without restriction.
    2. 13.2. Governing Law. You agree that:
      1. (i) the Services shall be deemed solely based in The Netherlands; and
      2. (ii) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over Real Smile, either specific or general, in jurisdictions other than The Netherlands. Our Terms of Use shall be exclusively governed by the internal substantive laws of the Netherlands. Any claim or dispute between you and Real Smile that arises in whole or in part from the Services or relating to the Services shall be decided exclusively by a court of competent jurisdiction located in Amsterdam, the Netherlands.
    3. 13.3 Notification Procedures. Real Smile may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you through e-mail notice, written or hard copy notice, or through conspicuous posting of such notice on our website, as determined by Real Smile in our sole discretion. Real Smile reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in our Terms of Use.
    4. 13.4 Entire Agreement/Severability. This Terms of Use, together with any other legal notices and agreements published by Real Smile through the Services, shall constitute the entire Agreement between you and Real Smile concerning the Services. If any provision of this Terms of Use is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Terms of Use, which shall remain in full force and effect. No waiver of any term of this Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and Real Smile’s failure to assert any right or provision under this Terms of Use shall not constitute

For our Privacy Policy you can click on this link