These Terms of Use, including any policies, rules and other terms that are expressly incorporated herein by reference (collectively, these “Terms”), sets forth a legally binding agreement between you and Smushy Dushy Studios, LLC. (“Smushy Dushy,” “We,” “Us,” or “Our” ). These Terms, together with Smushy Dushy’s Privacy Policy, apply to all applications, mobile application, sites, software, Smushy Dushy Content, User Content, any and all products and services developed, created, marketed, sold or otherwise made available through Smushy Dushy and/or any of our affiliates (collectively, the “Smushy Dushy Services”) and govern your access to and use of the Smushy Dushy Services. By creating a Smushy Dushy account or using any Smushy Dushy Services, you agree to these Terms. Please read them carefully.
Smushy Dushy provides a wide range of Smushy Dushy Services, so sometimes additional terms or product requirements may apply. Additional terms will be available with the relevant Smushy Dushy Services, and those additional terms become part of your agreement with us if you use those Smushy Dushy Services.
ARBITRATION NOTICE: YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. WE EXPLAIN MORE ABOUT ARBITRATION AND DISPUTE RESOLUTION BELOW.
BY CREATING A SMUSHY DUSHY ACCOUNT OR USING THE SMUSHY DUSHY SERVICES, YOU ACCEPT AND AGREE TO THESE TERMS, AS UPDATED FROM TIME TO TIME. PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SMUSHY DUSHY SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT ACCESS OR USE ANY OF THE SMUSHY DUSHY SERVICES.
Providing you the Smushy Dushy Services requires collecting and using your information. Our Privacy Policy governs the processing of all information collected from you in connection with your use of the Smushy Dushy Services and explains how we use and share information. The Privacy Policy is incorporated fully by reference into these Terms, and together with these Terms and any other terms and conditions or policies incorporated by reference from time to time, makes up the complete and legally-binding agreement governing your relationship with Smushy Dushy. It also explains the ways you can control your information. You must agree to the Privacy Policy to use the Smushy Dushy Services. The Privacy Policy can be accessed here.
License: Subject to your compliance with the Terms, Smushy Dushy grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license (the “License”) to access and make non-commercial personal use of the Smushy Dushy Services. Except for User Content (defined below), Smushy Dushy owns the actual bits and bytes of data on its servers. You have no property or other interest in those bits and bytes, or to any Smushy Dushy servers, infrastructure, or the Smushy Dushy Services we offer.
Smushy Dushy Content License: The Smushy Dushy Services contain information or material, including, without limitation, data, text, images, stickers, usernames, graphics, photos, profiles, music, audio and video clips, and links owned by Smushy Dushy and its licensors (collectively, the “Smushy Dushy Content”). Smushy Dushy Content is protected by copyright, trademark, trade dress, patent, trade secret and all other applicable intellectual property rights, and Smushy Dushy and its licensors own and retain all rights in the Smushy Dushy Content. Smushy Dushy owns and retains all interest and rights in and to the Smushy Dushy Services; we do not transfer title to any Smushy Dushy Content or any portion of the Smushy Dushy Services to you. Smushy Dushy hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to reproduce and display the Smushy Dushy Content (excluding any software code) for your non-commercial personal use solely in connection with your use of the Smushy Dushy Services. While Smushy Dushy prohibits certain conduct on its Smushy Dushy Services, Smushy Dushy does not monitor, and Smushy Dushy is not responsible for, User Content or activities of the users of the Smushy Dushy Services. SMUSHY DUSHY IS IN NO WAY RESPONSIBLE OR LIABLE FOR ANY MISUSE, WHETHER NEGLIGENT OR WILFUL, OF ANY OF THE SMUSHY DUSHY SERVICES BY YOU, USERS OR THIRD PARTIES.
Smushy Dushy Fee-Based Subscriptions: The Smushy Dushy Services may include fee-based subscriptions or fixed fees. Payment of a fee to Smushy Dushy for enhanced levels of Smushy Dushy Services does not change the license Smushy Dushy grants to you under the Terms. For example, a paid subscription or fixed fee does not allow you to own Smushy Dushy Content or use it for commercial purposes.
The Smushy Dushy Services that may be accessed after payment are subject to payment of certain fees as determined by us from time to time, which shall be made via credit card or such other payment method as accepted or directed by Smushy Dushy. All subscription fees are quoted in U.S. Dollars unless otherwise specified by Smushy Dushy. The subscription fees are exclusive of all taxes, which are born by the user.
Paid subscriptions to the Smushy Dushy Services are made on an auto-renewal basis. As such, your subscription will automatically renew upon the end of your applicable subscription period (e.g., annual basis) corresponding to the term of your subscription unless cancelled in accordance with the terms of your subscription. If your subscription renewal begins on a day not contained in a given month, then we will charge you on the last day of such month. You acknowledge and agree that the timing of when you are billed and the amount billed may vary due to free trials and other promotional offers, credits applied to your account, and changes in your subscription, and you hereby authorize us to charge you for the corresponding amounts. You are solely responsible for ensuring that your billing and payment information are correct to prevent your subscription from being cancelled. If we cannot charge your payment method for any reason (such as expiration or insufficient funds), and you have not cancelled your subscription, you remain responsible for any uncollected amounts, and we will attempt to charge any payment method you have provided us, or provide us. This may result in a change to the start of your next subscription period and may change the date on which you are billed for each period. We reserve the right to cancel your subscription if we are unable to successfully charge your payment method to renew your subscription. When your subscription ends, and if we are unable to renew your subscription for any reason, you will lose access to the Smushy Dushy Services.
If we offer you a promotional price for your subscription or fixed fee or another type of promotion, the specific terms of the promotion will be disclosed or made available to you when you select your subscription plan and agree to the any additional terms that will be provided to you and describe the particular promotion for your selected subscription plan. In the case of promotional pricing, after your promotion ends, we will begin billing you for your subscription at the regular price after the promotion ends unless you cancel your subscription prior to the end of the promotion.
We reserve the right to change, modify or vary the price, package and features of Smushy Dushy subscription plans or fixed-fee items that we make available from time to time. If we change or modify the price and package of such subscription plans or fixed-fee items, we will provide you with advanced notice of the applicable changes or modifications. You may discontinue use of the Smushy Dushy Services offered under a subscription plan or fixed-fee item and request the cancellation of your subscription to such Smushy Dushy Services at any time. We will not be liable for reimbursing you in any amount in the event of your cancellation of your Smushy Dushy subscription.
You may cancel your subscription by accessing your account information and following the posted instructions for cancellation of your subscription. By cancelling your membership, your account will automatically close at the end of your current billing period. Upon cancellation of your subscription, you may continue to use the applicable Smushy Dushy Services through the remainder of your subscription term, as well as any User Content that you previously created or reproduced through use of such Smushy Dushy Services as of the date of cancellation of your subscription, provided that such use must be in compliance with these Terms.
Smushy Dushy Services and User Content: Subject to these Terms, the Smushy Dushy Services allow you to create your own content (“User Content”) and engage in the following non-commercial personal activities:
Ads, Offers, Sponsored Content and Promotions: The Smushy Dushy Services may from time to time include ads, offers and sponsored content. We provide such ads, offers, and sponsored content to enable us to offer free, base-level Smushy Dushy Services accounts, as well as certain content and contests that are current and relevant to our users.
Additional Terms: When using particular services or materials in connection with the Smushy Dushy Services, you shall be subject to any posted rules applicable to such services or materials that may contain terms and conditions or other operating rules, policies and procedures in addition to those in these Terms (“Additional Terms”).
Smushy Dushy continuously develops and improves the Smushy Dushy Services, combining community data and technologies such as machine learning and artificial intelligence, to provide its growing community of users with novel and improved product offerings. An integral part of providing Smushy Dushy Services improvements and updated security features, including automatically-installed modifications, upgrades, and error corrections, is Smushy Dushy’s ability to modify the Smushy Dushy Services software.
Beta Services: Smushy Dushy may from time to time offer certain services to you as closed or open beta services under a beta, labs, preview, non-production or similar designation for the purpose of testing and evaluation (“Beta Services”). You may accept or decline to use Beta Services in your sole discretion. Beta Services are for evaluation purposes only and may be subject to additional terms. Smushy Dushy will have the sole authority and discretion to determine the period of time for testing and evaluation of Beta Services and further reserves the right to fully or partially discontinue Beta Services at any time and for any reason, temporarily or permanently, with or without notice. Smushy Dushy will have no liability to you or any third party for any harm or damage arising out of or in connection with a Beta Service. BETA SERVICES ARE PROVIDED STRICTLY “AS IS” WITHOUT WARRANTY OF ANY KIND.
Refunds: There shall be no refunds or credits for cancellation of your subscription. There shall be no refunds or credits for suspension or termination of this Agreement or your account for any reason.
You may need to create a Smushy Dushy account in order to access and use certain Smushy Dushy Services. To protect your Smushy Dushy account, please keep your username and password strictly confidential. You are solely responsible for maintaining the confidentiality of your username, password and other account information, and are fully responsible for all activities performed through or under your Smushy Dushy account. To access Smushy Dushy Services, you may be required to create a username and password for your Smushy Dushy account. You must provide accurate, complete and current registration information when you register and create a Smushy Dushy account. In consideration of your access to the Smushy Dushy Services, you agree to: (i) provide true, accurate, current, and complete registration information about yourself as prompted by the Smushy Dushy Services; and (ii) maintain and promptly update your registration information to keep it true, accurate, current and complete. If you provide any registration information that is untrue, inaccurate, not current or incomplete, Smushy Dushy has the right to limit, suspend or terminate your account and your access to the Smushy Dushy Services (or any portion thereof). You agree to immediately notify Smushy Dushy of any unauthorized use of your Smushy Dushy account and ensure that you exit from your account at the end of each session. Smushy Dushy will not be liable for any harm or damages arising from your failure to comply with this Section.
Smushy Dushy specifically prohibits users from uploading, embedding, posting, e-mailing, transmitting or otherwise making available on or through the Smushy Dushy Services any material that infringes any proprietary rights of any person or entity, including copyrights. Smushy Dushy will remove any and all Smushy Dushy Content or User Content if properly notified that such Smushy Dushy Content or User Content infringes another’s intellectual property rights. We respond to notices of copyright infringement in compliance with the U.S. Digital Millennium Copyright Act (“DCMA”) and have a policy of terminating access to the Smushy Dushy Services by repeat infringers in circumstances deemed appropriate in our sole discretion. If you have a valid claim, report infringement of intellectual property by sending your claim to info@smushydushy.com. Any intellectual property claim, including copyright, submitted to Smushy Dushy in writing must contain the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of an exclusive intellectual property interest; (ii) a description of the intellectual property, including any registration numbers, that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the Smushy Dushy Services that is reasonably sufficient to enable Smushy Dushy to identify and locate the material; (iv) contact information (name, address, e-mail, phone) for how you would like Smushy Dushy to contact you; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you that the above information is accurate and under penalty of perjury that you are authorized to act on behalf of the copyright owner or the owner of an exclusive right in the material.
In the event you have been notified that User Content you posted has been removed due to a valid copyright DMCA take-down request from a third party and you believe you have a valid basis for appealing the removal of your content, you may submit a counter-notice by sending a notification to info@smushydushy.com that includes: (i) your physical or electronic signature; (ii) identification of the content that has been removed; (iii) a statement that you have a good faith belief that the content was removed as a result of mistake of a misidentification of the content; (iv) your contact information (name, address, e-mail and phone number); and (v) a statement that you consent to the jurisdiction of the Federal Court for the judicial district in which your address is located and that you will accept service of process from the third party who submitted the initial infringement claim to Smushy Dushy. Once Smushy Dushy receives your counter-notice, Smushy Dushy will send a copy of your counter-notice, including the contact information provided by you, to the third party who submitted the initial infringement claim to Smushy Dushy. If the third party who submitted the initial infringement claim does not notify us that they have filed an action seeking a court order to restrain you from engaging in infringing activity on Smushy Dushy within 10 to 14 business days, Smushy Dushy will allow you to replace the content in accordance with DMCA procedures. Please note that restoration of content by Smushy Dushy may not always be technically feasible.
There may be occasions when the Smushy Dushy Services are interrupted for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and equipment. Smushy Dushy encourages you to maintain your own backup of your User Content. In other words, Smushy Dushy is not a backup service. You agree that Smushy Dushy may, but is not required to, provide modifications, upgrades, error corrections or other updates, including automatically-installed modifications, upgrades, error corrections or updates (collectively, “Updates”) to the Smushy Dushy Services, and thus may modify, with or without your knowledge, the Smushy Dushy Services that you have already installed. These Updates may include changes or improvements to the Digital Rights Management (“DRM”) technology or other similar security system used by Smushy Dushy to protect against the unauthorized copying of the Smushy Dushy Services. You agree and consent to the automatic installation or application of these Updates and to only use the most updated version of the Smushy Dushy Services provided to you by Smushy Dushy through its application vendors.
The Smushy Dushy Services may contain links to independent third-party websites and services (collectively, “Third-Party Sites”). Third-Party Sites are not under Smushy Dushy’s control, and Smushy Dushy does not endorse, is not responsible for, and shall have no liability to you with respect to the business practices, privacy practices, or content including, without limitation, any and all materials, information, merchandise, products or services displayed, featured, mentioned, advertised, distributed or sold on or through such Third-Party Sites. If you access any Third-Party Site, you acknowledge and agree that you do so at your own risk and that it is your responsibility to read and understand the privacy, membership, payment and other policies, terms and conditions, and/or terms of use of the Third-Party Sites and to determine whether or not you will have any interaction with any of those sites.
THE SMUSHY DUSHY SERVICES AND SMUSHY DUSHY CONTENT ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SMUSHY DUSHY MAKES NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SMUSHY DUSHY SERVICES; (B) THE SMUSHY DUSHY CONTENT; (C) USER CONTENT; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO SMUSHY DUSHY OR VIA THE SMUSHY DUSHY SERVICES. SMUSHY DUSHY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND SATISFACTORY PURPOSE.
SMUSHY DUSHY DOES NOT REPRESENT OR WARRANT THAT THE SMUSHY DUSHY SERVICES WILL BE ERROR-FREE, UNINTERRUPTED, OR SECURE; THAT USER CONTENT MARKED AS PRIVATE WILL NOT BECOME PUBLIC; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SMUSHY DUSHY SERVICES ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. SMUSHY DUSHY DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE CONTENT (INCLUDING ANY USER CONTENT OR SMUSHY DUSHY CONTENT) AVAILABLE ON OR THROUGH THE SMUSHY DUSHY SERVICES IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SMUSHY DUSHY SERVICES IS AT YOUR SOLE RISK. SMUSHY DUSHY DOES NOT WARRANT THAT YOUR USE OF THE SMUSHY DUSHY SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND SMUSHY DUSHY SPECIFICALLY DISCLAIMS SUCH WARRANTIES.
YOU SPECIFICALLY ACKNOWLEDGE THAT SMUSHY DUSHY DOES NOT ENDORSE ANY USER CONTENT OR OTHER THIRD-PARTY CONTENT AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER ARISING OR RESULTING FROM ANY CONTENT (INCLUDING, WITHOUT LIMITATION, USER CONTENT), INTERACTIONS BETWEEN USERS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SMUSHY DUSHY, ITS AFFILIATES, LICENSORS, SPONSORS, OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOST PROFITS, COST OF COVER, LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES WHATSOEVER ARISING OR RESULTING FROM: (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT DISPLAYED ON OR THROUGH THE SMUSHY DUSHY SERVICES; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND/OR USE OF (OR YOUR INABILITY TO ACCESS AND USE) THE SMUSHY DUSHY SERVICES, INCLUDING, WITHOUT LIMITATION, MAKING PRIVATE CONTENT PUBLIC OR ANY DAMAGE CAUSED TO YOUR COMPUTER OR SOFTWARE OR INFORMATION STORED THEREON; (III) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY OBTAINED ON OR THROUGH THE SMUSHY DUSHY SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (IV) ANY UNAUTHORIZED ACCESS TO OR USE OF SMUSHY DUSHY SERVICES AND/OR ANY AND ALL PERSONAL, PRIVATE, AND/ OR OTHER INFORMATION STORED THEREIN; (V) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SMUSHY DUSHY SERVICES OR THROUGH THE SMUSHY DUSHY SERVICES; (VI) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SMUSHY DUSHY SERVICES BY ANY THIRD PARTY; (VII) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR USER CONTENT; (VIII) E-MAILS OR OTHER TRANSMISSIONS OR COMMUNICATIONS MADE TO YOU THROUGH THE SMUSHY DUSHY SERVICES; AND/OR (IX) ANY ERRORS OR OMISSIONS IN ANY CONTENT (INCLUDING SMUSHY DUSHY CONTENT OR USER CONTENT) OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT (INCLUDING USER CONTENT) OR SERVICES POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SMUSHY DUSHY SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SMUSHY DUSHY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SMUSHY DUSHY’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS OR THE SMUSHY DUSHY SERVICES, EXCEED ONE HUNDRED U.S. DOLLARS ($100.00). THE EXISTENCE OF ONE OR MULTIPLE CLAIMS WILL NOT SERVE TO ENLARGE THIS LIMIT. THIS LIMITATION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN. YOU ACKNOWLEDGE THAT THE DISCLAIMERS AND LIMITATIONS HEREIN ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods other than in the course of a business), so the exclusions set forth in the immediately preceding paragraphs above may not apply to you if you are a consumer. Nothing in the limitations or exclusions of warranties and liability contained in these Terms affects or prejudices the statutory rights of a consumer in such jurisdictions. The limitations or exclusions of warranties and remedies contained in the Terms shall apply to you as a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you are located.
You acknowledge and agree that Smushy Dushy does not assume any responsibility or liability for User Content generated by you or any user of the Smushy Dushy Services posted anywhere, including without limitation, personally identifiable information posted publicly, or the conduct of you or any user, and you bear the entire risk of your continued use of the Smushy Dushy Services. You agree that Smushy Dushy will not be responsible for any claim, loss, liability, personal injury (including death), damage, cost or expense (including attorneys’ fees), incurred as the result of or relating to any User Content, or any interactions with third parties, including disputes between you and other third parties regarding User Content, user dissemination of your User Content or any other User Content, and any and all other disputes, conflicts, or claimed allegations or causes of action arising from your use of the Smushy Dushy Services. If there is a claim or dispute between you and any other user or third party, Smushy Dushy is under no obligation to become involved. You understand and agree that Smushy Dushy is not responsible or liable in any way for any communication, actions, or conduct between you and other users or third parties. You, on behalf of you and your heirs, successors and assigns, hereby release and forever discharge Smushy Dushy, and its affiliates, employees, contractors, agents, successors, and assigns, from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injury, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to the Terms, your use of the Smushy Dushy Services, any User Content, or any of your interactions with other users or third parties. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You agree to defend (at Smushy Dushy’s request), indemnify and hold Smushy Dushy and its affiliates, directors, officers, employees, contractors, and agents harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorneys’ fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities in connection with the Smushy Dushy Services or those conducted on your behalf): (i) your User Content or your access to or use of the Smushy Dushy Services; (ii) your breach or alleged breach of these Terms; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental authorities, including, without limitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You agree to cooperate as fully required by Smushy Dushy in the defense of any claim, including monetary contribution for defense. Smushy Dushy reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Smushy Dushy.
Although the Smushy Dushy Services may be accessible worldwide, Smushy Dushy makes no representation that the materials and/or content made available in connection with the Smushy Dushy Services are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access the Smushy Dushy Services from other locations do so at their own risk and are responsible for compliance with local laws. Any offer for any product, service, and/or information made in connection with this Smushy Dushy Services is void where prohibited. BY ACCESSING OR USING THE SMUSHY DUSHY SERVICES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SMUSHY DUSHY SERVICES. Notwithstanding the foregoing, the Smushy Dushy Services may be available on a localized basis to users located in certain countries outside of the United States. For a list of countries in which localized Smushy Dushy Services may be offered and additional or supplemental Terms of Use may govern, please send an e-mail to info@smushydushy.com and indicate the country of origin.
Users may not download, use, export or re-export any materials or content (including User Content and Smushy Dushy Content) posted or submitted on or through the Smushy Dushy Services or any software utilized or available in connection with the Smushy Dushy Services in violation of any applicable laws or regulations, including, without limitation, United States export laws, regulations and controls.
The Terms, Privacy Policy, and any Additional Terms shall be governed by the laws of the State of California without giving effect to any conflicts of laws principles. The United Nations Conventions for International Sale of Goods does not apply to this agreement.
In the event a dispute cannot be resolved through communications with Smushy Dushy, you and we agree that any dispute, claim, or controversy arising out of or relating to the Terms, Privacy Policy, or Additional Terms (if any), or your use of the Smushy Dushy Services, shall be resolved through final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, and such dispute shall be resolved in San Francisco, California, United States. Judgment on any award entered by the arbitrator may be enforced in any court having jurisdiction thereof. You acknowledge and agree that you may bring claims against Smushy Dushy only in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. You and we agree that any claims not subject to arbitration shall be litigated exclusively in a state court located in Los Angeles, California and you hereby irrevocably consent to personal jurisdiction in those courts.
In any action to enforce the Terms, Privacy Policy, or Additional Terms the prevailing party will be entitled to costs and attorneys’ fees. Any cause of action brought by you against Smushy Dushy, or its affiliates, officers, directors, or agents, must be instituted within one (1) year after the cause of action arises or be deemed forever waived and barred. You may not assign your rights and obligations under the Terms to any party, and any purported attempt to do so will be null and void. Smushy Dushy may freely assign its rights and obligations under the Terms. If any part of the Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Any failure by Smushy Dushy to enforce or exercise any provision of the Terms or related rights shall not constitute a waiver of that right or provision. All notices to you shall be made in writing and delivered via e-mail to the e-mail address designated by you in your user account or by otherwise posting such notices on the Smushy Dushy Services. Smushy Dushy reserves the right to broadcast notices or messages through the Smushy Dushy Services to inform you of changes to the Smushy Dushy Services or other matters of importance, and such broadcasts shall constitute notice to you at the time of publication. These Terms, together with the Privacy Policy, any Additional Terms, and any other legal notices published by Smushy Dushy, constitute the entire agreement and understanding between you and Smushy Dushy concerning the subject matter of these Terms and supersede all prior agreements and understandings between you and Smushy Dushy with respect to that subject matter. These Terms may not be amended or modified, except by a written agreement signed by you and Smushy Dushy.
Smushy Dushy reserves the right to alter these Terms at any time in its sole discretion. If the alterations constitute a material change to these Terms, Smushy Dushy will notify you by posting the updated Terms to the Smushy Dushy Site and notifying you via the Smushy Dushy Services. Your continued use of the Smushy Dushy Services after such notification of changes to the Terms will constitute your agreement and acceptance to such changes. If you object to any change, your sole recourse shall be to immediately terminate your account and cease using the Smushy Dushy Services. You agree to review the Smushy Dushy Website periodically for any such changes to the Terms.
We may send you responses or notices by e-mail, by posting within the Smushy Dushy Services, or by written communication sent by U.S. Postal Service. You hereby consent to receive communications from Smushy Dushy in an electronic form, and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. The foregoing does not affect your non-waivable rights.
Apple and the Apple logo are trademarks of Apple Inc., registered in the U.S. and other countries. App Store is a service mark of Apple Inc. Android and Google Play are trademarks of Google Inc. Amazon logo is a trademark of Amazon.com Inc. or its affiliates. MojiBooks, Match Boss & Match Lingo by Smushy Dushy are registered trademarks of Smushy Dushy Studios LLC.