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.
1051 LL Amsterdam
CoC number: 60639431
1. Use Of Our Services
- 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.
- 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.
- 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.
- 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.
- (i) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services;
- (ii) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure;
- (iii) uploading invalid data, viruses, worms, or other software agents through the Services;
- (iv) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud,
- (v) interfering with the proper working of the Services; or
- (vi) bypassing the measures we may use to prevent or restrict access to the Services; or
- 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.
3. User Content
- 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.
- 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.
- 3.4. You agree not to post User Content that:
- (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,
- (ii) may create a risk of any other loss or damage to any person or property;
- (iii) may constitute or contribute to a crime or tort;
- (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;
- (v) contains any information or content that is illegal;
- (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
- (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.
- 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.
- 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.
- 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. Real Smile Administration
5. License Grant
6. Our Proprietary Rights
- 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.
- 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.
- 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. Privacy, Third-Party Websites, Advertisers Or Services
- 7.2. Real Smile commits not to sell your personal data to any third party, here included your personal interaction with the Services.
- 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.
- 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. Additional Representations And Warranties
- 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.
- 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:
- (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;
- (1. iii) your violation of any third-party right, including but not limited to any right of privacy, publicity rights or Intellectual Property Rights;
- (iv) your violation of any law, rule or regulation of the Netherlands or any other country;
- (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
- (vi) any other party’s use of the Services.
11. No Warranty
- 11.1. The Services are provided on an “as is” and “as available” basis. Use of the Services is at your own risk.
- 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.
- 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.
- 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. Limitation Of Liability
- 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.
- 12.2. To the maximum extent permitted by applicable law, Real Smile assumes no liability or responsibility for any
- (i) errors, mistakes, or inaccuracies of content;
- (ii) personal injury or property damage of any nature resulting from your access to and use of our Services;
- (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein;
- (iv) any interruption or cessation of transmission to or from the Services;
- (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our Services by any third party;
- (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
- (vii) User content or the defamatory, offensive, or illegal conduct of any third party.
- 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.
- 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.
- 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.
- 13.2. Governing Law. You agree that:
- (i) the Services shall be deemed solely based in The Netherlands; and