Last modified: July 20, 2012
Acceptance and Modification
Acceptance. Please carefully read the representations, warranties, conditions, covenants and agreements set forth below in this end user license agreement (the "Agreement") and the legal terms that govern Your use of SmaartMobile, Inc.'s ("SmaartMobile", "We", "Us" or "Our") App and supporting social networking services collectively known as Evry'U ("EVRY'U") (as further defined below). This Agreement is a binding contract between you ("You", "Your" or the "User") and SmaartMobile and it explains Your rights and obligations when You use the EVRY'U.
In this Agreement "App" means the software application distributed by SmaartMobile for use on Your Device (as defined below) in order to access the social networking services, as well as any future versions, improvements, developments, programming fixes, updates and upgrades thereof; and "Device" means a mobile phone, smartphone, handset, tablet or other mobile device enabled for internet access and/or communication.
Modification. SmaartMobile reserves the right to change the terms of this Agreement at any time by publishing the revised Agreement on the EVRY'U website. The revised Agreement shall become effective within fourteen (14) days of such publication, unless You expressly accept the revised Agreement earlier by clicking on the accept button (if this option is made available). Your express acceptance or Your continued use of EVRY'U after expiry of the notice period of fourteen (14) days, shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement. You can find the latest version of this Agreement at
Downloading of the App, use of EVRY'U and registration for an account to use EVRY'U ("Your Account") is void where prohibited. You must be 17 years or older to use EVRY'U (including, but not limited to, registering for an account). By registering for EVRY'U, You represent and warrant that (a) You are 17 or older and that You have the capacity to understand, agree to and comply with this Agreement; (b) you have never been convicted of a felony or any criminal offense characterized as a sexual offense and are not required to register as a sex offender with any government entity; (c) you are not a competitor of Evry'U and are not using Evry'U for reasons that are in competition with Evry'U for other than for its intended purpose. Your Account may be deleted and Your access to EVRY'U may be terminated without warning if We believe that You are under 17 years of age or that you misrepresented yourself.
License from SmaartMobile
Subject to the terms and conditions of this Agreement, SmaartMobile hereby grants You a limited, personal, non-exclusive, non-sublicensable, non-assignable license to: (a) download, install and use the App on Your Device for the sole purpose of personally using EVRY'U; and (b) use EVRY'U together in accordance with this Agreement.
Unless SmaartMobile has given You specific written permission to do so, You may not assign (or grant a sub-license of) Your rights to use the App or otherwise transfer any part of Your rights to use the App.
During the registration and set-up for Your Account, You will be required to provide Us with certain information about Yourself including, without limitation, Your email address and, depending on the Device that You use, Your telephone number. As part of the registration process for Your Account, You will choose a password (the "Password") for Your authorized access and use of EVRY'U. Your Password is unique to You alone. Without them, no one can log-in to Your Account. You must carefully select Your Password so that it cannot be easily guessed by anyone else. You agree to keep Your Password absolutely confidential, and ensure it is never disclosed, accidentally or otherwise, to anyone else. You are fully responsible for all activities that occur under Your Account.
During the registration procedure, You will receive from Us an activation code to validate Your registration. This code is unique to You and validates Your Account. You agree to keep the validation code absolutely confidential and ensure it is never disclosed, accidentally or otherwise, to anyone else. You are fully responsible for all activities that occur under Your Account.
Interactions with Other Users; Criminal Background Screenings. You agree to assume all risk when using the EVRY'U, including but not limited to all risks associated with any online or offline interactions with others, including dating. There is no substitute for acting with caution when communicating with any stranger who wants to meet you. YOU ACKNOWLEDGE THAT, CURRENTLY, SMAARTMOBILE DOES NOT SCREEN ITS USERS, INQUIRE INTO THE BACKGROUND OF ITS USERS, ATTEMPT TO VERIFY INFORMATION PROVIDED BY ITS USERS OR CONDUCT CRIMINAL SCREENINGS OF ITS USERS. HOWEVER SMAARTMOBILE RESERVES THE RIGHT TO CONDUCT SUCH INQUIRIES OR SCREENINGS (INCLUDING THE SEARCH OF ANY SEX OFFENDER REGISTRIES), AT ITS SOLE DISCRETION. SmaartMobile does not make any representations, warranties or guarantees as to the conduct of its users or their compatibility with you. You acknowledge that not all users are available for discovery or matching and that SmaartMobile may create test profiles or accounts to monitor the operation of EVRY'U.
You agree to take all necessary precautions when meeting other users, especially if you decide to meet in person. IN ADDITION, YOU AGREE TO REVIEW OUR ONLINE DATING SAFETY TIPS PRIOR TO USING THE SERVICES. These tips can be found at:
and provide general advice aimed at engaging in safer dating practices, such as, but not limited to, not providing your last name, home address, place of work, financial information (such as your credit card number or your bank account number) or other identifying information to other users and stopping all communications with anyone who pressures you for personal or financial information or attempts in any way to trick you into revealing it. Furthermore You agree to treat all other users with dignity and respect and comply with Our user conduct rules as set forth elsewhere in this agreement.
License from You for Your Content
By transmitting, posting, making available, submitting or otherwise communicating Your Content to or through EVRY'U, You represent and warrant to SmaartMobile that You own, have a license to or otherwise control all of the rights to Your Content, and that Our use of Your Content (in accordance with this Agreement) will not infringe or violate the rights of any third party including, but not limited to, any privacy or intellectual property rights, or constitute violation of any applicable law. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any of Your Content.
You shall not have any right to terminate the licenses to Your Content granted in this Agreement, nor to seek, obtain, or enforce any injunctive or other equitable relief against SmaartMobile in connection with its use of Your Content in accordance with the this Agreement, all of which such rights are hereby expressly and irrevocably waived by You in favor of SmaartMobile.
WE ARE NOT OBLIGATED TO BACK-UP ANY OF YOUR CONTENT AND YOU ACKNOWLEDGE AND AGREE THAT ANY OF YOUR CONTENT MAY BE DELETED AT ANYTIME. YOU ARE SOLELY RESPONSIBLE FOR CREATING BACK-UP COPIES OF YOUR CONTENT IF YOU DESIRE.
Collection and Use of Personal Information
Being Found by Other Users: By default, other users of EVRY'U will be able to search for Your profile and may, if granted permission by You, be able to contact You. You may choose to prevent other users of EVRY'U from searching for Your profile at any time by selecting to have Your profile set as 'private' in the App's settings page. You should understand that your profile does not by default contain Your email address or phone number, only You can change this and if You do, it is at Your sole discretion and You are solely Responsible any loss of Privacy that might result or it's consequences.
EVRY'U is a community oriented service. Please remember that any Content that You post, submit or otherwise communicate to or through EVRY'U is Your own responsibility and We expect You to take utmost care to ensure that it remains friendly, courteous, respectful of others and is in compliance with this Agreement. You are required to comply with all applicable laws in connection with Your use of EVRY'U and such further limitations as may be set forth in this Agreement and in any written or on-screen notice from SmaartMobile. You may not use EVRY'U for any purpose that is unlawful or prohibited by this Agreement or that otherwise harm's SmaartMobile, its affiliates, its service providers, suppliers, customers or other users like You.
You acknowledge and agree that SmaartMobile is not responsible or liable in any manner for the conduct of you or any of its users, whether or not such conduct is in connection with the use of Evry'U or the App. YOU ACKNOWLEDGE AND AGREE THAT YOU USE EVRY'U AT YOUR OWN RISK.
You agree that You will not use EVRY'U to post, transmit, make available, submit or otherwise communicate any Content that:
(i) is harmful or obscene;
(ii) is defamatory, slanderous, libelous, harassing or abusive or otherwise harasses or advocates harassment of another person;
(iii) contains pornography, excessive violence, or offensive subject matter or contains a link to any such type of website;
(iv) constitutes or promotes information that You know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, defamatory or libelous;
(v) infringes the copyrights, patents, trade secrets, trademarks, trade names or other proprietary rights of any person or entity;
(vi) constitutes "spam", advertising or promotion of commercial services or products and or attempts to fundraise or solicit money from any other EVRY'U user or promote or solicit involvement in or support of a political platform, religion, cult, or sect;
(vii) or contains, or contains links to, files that contain viruses, malware, corrupted files, or any other similar software, programs or files;
(viii) solicit or engage in gambling or any similar activity or any illegal or unlawful activity;
(ix) collect or solicit personal information about anyone under 17;
(x) defraud, swindle or deceive other users of the Services;
(xi) act in any unlawful manner or in a manner that is harmful to or violates the rights of others;
(xii) Engage in any harassing, intimidating, predatory or stalking conduct; or
(xiii) use in any manner that could disrupt, damage, disable, overburden, impair or affect the performance of or interfere with or attempt to interfere with any other user's use of Evry'U;
(xiv) for any phishing, trolling or similar activities;
(xv) redirect users to other sites or encourage users to visit other sites;
(xvi) harvest or collect email addresses or other contact information of other users by electronic or other means or to send, either directly or indirectly, any unsolicited bulk e-mail or communications, unsolicited commercial e-mail or communications or other spamming or spimming activities; or
(xvii) attempt to access any of the services or areas of the Evry'U Site that you are not authorized to access.
For greater clarity, even at the risk of repetition, You will not post or transport to any other user any User Content that is illegal or prohibited from being posted, which includes, but is not limited to, any User Content (or links to content) that ("Prohibited Content"):
(i) is obscene, pornographic, profane, defamatory, abusive, offensive, indecent, threatening, harassing, inflammatory, inaccurate, fraudulent or illegal;
(ii) promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
(iii) is intended to, or does, harass, or intimidate any other user or third party;
(iv) promotes or enables illegal or unlawful activities;
(v) violates someone's privacy rights; or
(vi) is, in the sole judgment of SmaartMobile, objectionable or restricts or inhibits any person from using or enjoying Evry'U or exposes SmaartMobile or its users to harm or liability of any type.
If you wish to report any violation of this Agreement by others, including Members, you may do so by using the "Report Profile" button on the Services or by contacting us here.
and select Report Violations category
You shall not, directly or indirectly, do any of the following acts in connection with Your use of EVRY'U or the App:
(i) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of EVRY'U or the App;
(ii) modify, translate, or create derivative works based on EVRY'U or the App;
(iii) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit EVRY'U or the App or make EVRY'U or the App available to a third party other than as contemplated in this Agreement;
(iv) use EVRY'U or the App for timesharing or service bureau purposes or otherwise for the benefit of a third party;
(v) transfer, publish or disclose to third parties any evaluation of EVRY'U or the App without SmaartMobile's prior written consent;
(vi) create any link to EVRY'U or the App or frame or mirror any content contained or accessible from, EVRY'U or the App; or
(vii) violate any local, state, federal or foreign law, treaty, regulation or convention applicable to You in connection with Your use of EVRY'U or the App, which may include, but not be limited to, the Personal Information Protection and Electronic Documents Act (Canada) and similar provincial legislation in Canada enacted from time to time, and other laws applicable to You related to privacy, publicity, data protection, electronic communications and anti-spamming laws.
SmaartMobile reserves the right to investigate and take appropriate action against anyone who, in SmaartMobile's sole discretion, violates Sections 21, 22, 23 or 24. Any use or misuse of EVRY'U in a manner that is disruptive, damaging, unlawful, offensive or intrusive as determined by SmaartMobile, in its sole discretion, shall be a breach of the terms of this Agreement, which shall result in SmaartMobile terminating this Agreement (and Your Account) in accordance with Section 36 below.
Violations and Complaints
Despite Our safety and privacy controls, We cannot guarantee that You will not encounter inappropriate or illegal conduct from other users of EVRY'U. Consequently, if You encounter such content and/or conduct, You can help SmaartMobile by notifying us of any inappropriate or illegal conduct or content (such as, nudity or pornography, or harassing statements, unwelcome contact or fraud) by visiting
and select Complaints category The reporting of complaints will be confidential and once a complaint is received, We will first acknowledge the receipt of Your complaint and then take steps to address the complaint that may include, but is not limited to, removing the offending content or to warn or, as appropriate, to prevent those transmitting such content or engaging in such conduct. We will also provide You with an explanation of the steps taken to address the complaint.
Intellectual Property Rights
All copyright rights in the text, images, photographs, graphics, user interface, and other content provided on the App, and the selection, coordination, and arrangement of such content, are owned by SmaartMobile, or its applicable third party licensors, to the full extent provided under applicable copyright laws.
All rights in the product names, company names, trade names, logos and designs of SmaartMobile or third party products or services that form part of EVRY'U or the App, whether or not appearing in large print or with the trademark symbol, belong exclusively to SmaartMobile or their respective owners, and are protected from reproduction, imitation, dilution or confusing or misleading uses under national and international trademark and copyright laws, as applicable. The use or misuse of these trademarks or any materials, except as permitted herein, is expressly prohibited and nothing stated or implied on this Agreement confers on You any license or right under any patent, copyright or trademark of the SmaartMobile or any third party.
Third Party Content and Links
EVRY'U may be supported by advertising revenue and may display advertisements and promotions provided by third party partners or providers. The manner, mode and extent of advertising on EVRY'U are subject to change without specific notice to You. In consideration for SmaartMobile granting You access to and use of EVRY'U, You agree that SmaartMobile may place or allow the placement of such advertising on EVRY'U.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the App or EVRY'U (collectively, "Submissions") provided by You to Us are solely Your Submissions and not that of a third party, are non-confidential to You and shall become the sole property of SmaartMobile. SmaartMobile shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to You. You hereby waive to and in favor of SmaartMobile Your moral rights in and to Submissions made by You.
Term and Termination
The term of this Agreement ("Term") will commence, and You may begin using the App and EVRY'U, once You agree to this Agreement. The Agreement will remain in effect until terminated by You or Us in accordance with the Section Labeled Termination below.
You may terminate this Agreement with immediate effect at any time. Without limiting other remedies, SmaartMobile may limit, suspend, or terminate this Agreement and Your use of EVRY'U, the App, prohibit access to EVRY'U and delete Your User Account, with immediate effect, automatically if We think that You are in breach of this Agreement, creating problems, legal liabilities (actual or potential), harassing other users or infringing their intellectual property rights, engaging in fraudulent, immoral or illegal activities, or for other similar reasons. SmaartMobile shall effect such termination by providing notice to You to the email address You have provided to Us, and/or by preventing Your access to Your User Account. We reserve the right to cancel User Accounts that have been inactive for more than six (6) months.
DELETION OF PERSONAL INFORMATION.
Unless otherwise prohibited by law, Twelve (12) months after Your account is designated as "inactive" by Us or is otherwise Terminated as provided for in this agreement any information contained in Your Account including any pictures will be deleted. Information or pictures You leave on other Users Accounts will survive for a long as that account is not itself declared inactive and subject to the provisions of this paragraph. If you choose to Terminate Your Account with Us, You must request in writing that the information in your account be deleted otherwise it will remain until the Account is designated "inactive" and automatically in accordance with the provisions of this paragraph. Termination and deletion requests will be processes within thirty (30) days of any such request received in writing and We have confirmed Your request in writing. Send account Termination with request to delete all information to:
However, any accounts in arrears for any fees or suspected of being involved in or associated with some nefarious or illegal activities or otherwise involved in a dispute will not be deleted in accordance with the provisions of this paragraph or as otherwise legally obligated or compelled until a resolution or decision is reached at EVRY'U's sole and absolute discretion and satisfaction.
Consequences of Termination
Upon termination of this Agreement:
(a) all licenses and rights to use the App and EVRY'U shall immediately terminate;
(b) You will immediately cease any and all use of the App and EVRY'U; and
(c) You will immediately remove the App from Your Devices and all copies of the App in Your possession or under Your control.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD SMAARTMOBILE HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY AND COSTS, INCLUDING REASONABLE LEGAL FEES INCURRED BY SMAARTMOBILE, IN CONNECTION WITH OR ARISING OUT OF YOUR:
(I) VIOLATION OR BREACH OF ANY TERM OF THIS AGREEMENT OR ANY APPLICABLE LAW OR REGULATION, WHETHER OR NOT REFERENCED HEREIN;
(II) VIOLATION OF ANY RIGHTS OF ANY THIRD-PARTY;
(III) USE OR MISUSE OF THE APP AND/OR EVRY'U; OR
(IV) YOUR CONTENT.
Disclaimer of Warranties and Limitation of Liability
No Warranties: TO THE MAXIMUM EXTENT PERMITTED BY LAW, EVRY'U AND THE APP ARE PROVIDED "AS IS" WITH NO WARRANTIES OR CONDITIONS WHATSOEVER; SMAARTMOBILE DOES NOT, MAKE ANY WARRANTIES, CLAIMS, CONDITIONS OR REPRESENTATIONS WITH RESPECT TO EVRY'U INCLUDING, BUT NOT LIMITED TO THE APP, WHETHER EITHER EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR USE FOR A PARTICULAR PURPOSE. SMAARTMOBILE FURTHER DOES NOT REPRESENT OR WARRANT THAT EVRY'U OR THE APP, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES SMAARTMOBILE WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET, OR ANY QUALITY OF COMMUNICATIONS MADE THROUGH EVRY'U.
Data and Access Disclaimer: TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ANY RESPONSIBILITY FOR THE DELETION, THE FAILURE TO STORE, THE MISDELIVERY, OR THE UNTIMELY DELIVERY OF ANY INFORMATION OR MATERIAL INCLUDING, WITHOUT LIMITATION, ANY OF YOUR CONTENT. WE DISCLAIM ANY RESPONSIBILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY CONTENT THROUGH EVRY'U OR THE APP. BY USING EVRY'U OR THE APP, YOU ACKNOWLEDGE AND AGREE THAT TECHNICAL PROCESSING AND TRANSMISSION OF INFORMATION USING EVRY'U MAY INVOLVE TRANSMISSIONS OVER VARIOUS NETWORKS AND CHANGES TO CONFORM AND ADAPT TO TECHNICAL REQUIREMENTS OF CONNECTING NETWORKS OR DEVICES. SMAARTMOBILE IS, AND SHALL, NOT BE RESPONSIBLE OR LIABLE FOR ANY: (A) INCORRECT OR INACCURATE TRANSCRIPTION OF INFORMATION; (B) HUMAN ERROR OR PRINTING ERROR; (C) INTERRUPTION, DELETION, OMISSION, DEFECT, OR LINE FAILURE OF ANY TELEPHONE NETWORK OR ELECTRONIC TRANSMISSION; (D) PROBLEMS RELATING TO YOUR DEVICE OR ANY OTHER COMPUTER EQUIPMENT, SOFTWARE, INABILITY TO ACCESS THE APP OR EVRY'U; OR (E) OTHER TECHNICAL OR NON-TECHNICAL ERROR OR MALFUNCTION.
(a) YOU ACKNOWLEDGE AND AGREE THAT:
(I) EVRY'U CANNOT TRANSMIT COMMUNICATIONS OR OTHER ELECTRONIC REQUESTS TO DEVICES THAT ARE UNREACHABLE (I.E. OUT OF CELLULAR COVERAGE, POWERED OFF, ETC.); AND
(II) THAT EVRY'U IS NOT A SERVICE TO BE RELIED UPON AS THE SOLE MEANS OF RECEIVING CRITICAL INFORMATION.
(b) IN NO EVENT SHALL SMAARTMOBILE'S CHANNEL PARTNERS (INCLUDING, WITHOUT LIMITATION, DISTRIBUTORS OR SALES AGENTS) OR ANY AIRTIME SERVICE PROVIDER (COLLECTIVELY, "APP PROVIDERS") BE LIABLE FOR THE SALE, DISTRIBUTOR OR YOUR USE OF THE APP OR THE PERFORMANCE OR NON-PERFORMANCE OF THE APP. TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, THE APP PROVIDERS SHALL BE THIRD PARTY BENEFICIARIES TO THIS SECTION 35(b).
EVRY'U and the App are being provided to You free of charge. ACCORDINGLY, YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SMAARTMOBILE, ITS SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR APP PROVIDERS WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF EVRY'U OR THE APP, AS SET FORTH BELOW. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH EVRY'U OR THE APP IS TO IMMEDIATELY UNINSTALL AND CEASE USE OF THE APP AND EVRY'U.
Limitation of Liability:
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SMAARTMOBILE, ITS SUPPLIERS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR APP PROVIDERS BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR:
(a) ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF OR CORRUPTION TO DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE EVRY'U OR THE APP;
(b) ANY LOSS OF INCOME, BUSINESS OR PROFITS (WHETHER DIRECT OR INDIRECT) ARISING OUT OF THE USE OR INABILITY TO USE EVRY'U OR THE APP; OR
(c) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF:
(I) ANY DISRUPTIONS OR DELAYS IN ANY COMMUNICATION WHEN USING EVRY'U;
(II) THE SUSPENSION OR TERMINATION OF THIS AGREEMENT BY YOU OR BY SMAARTMOBILE FOR ANY REASON; OR
(III) THE RELEASE OR THE DECISION NOT TO RELEASE NEW VERSIONS OF THE APP TO YOU.
THE LIMITATIONS ON SMAARTMOBILE'S LIABILITY TO YOU IN PARAGRAPH 44 ABOVE SHALL APPLY WHETHER OR NOT SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
NOTWITHSTANDING ANYTHING CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL SMAARTMOBILE'S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNT OF ONE-HUNDRED DOLLARS (\$100.00) CANADIAN. THE LIMITATIONS OF THIS SECTION SHALL APPLY WHETHER OR NOT THE ALLEGED BREACH OR DEFAULT IS A BREACH OF A FUNDAMENTAL CONDITION OR TERM.
Jurisdiction's Limitations As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You. In such event the liability will be limited to the maximum extent permissible within the applicable legislation.
In addition to the free services provided by Evry'U, Paid Membership, Paid Services and Paid Features are offered that require payment. Where payment is required, the following additional terms and conditions will apply.
Billing and Payment:
SmaartMobile will use the credit card information you provide to bill You for goods and services. By registering for the Paid Memberships or Paid Features and providing Your credit card details, You agree to be billed by Us for Your for-fee service in advance.
Paid Memberships are subscriptions. If You subscribe to a Paid Membership then Your for the initial subscription commitment period, and again after any subsequent subscription period, Your subscription will automatically continue for an additional equivalent period, at the price you agreed to when subscribing. You agree that your account will be subject to this automatic renewal feature. If you do not wish your account to renew automatically, or if you want to change or terminate your subscription, please log in and go your Account page and opt out of automatic renewal of your purchase. If you opt out of automatic renewal after your purchase, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. You won't be eligible for a pro-rated refund of any portion of the subscription fee paid for the then-current subscription period. Paid Memberships cannot be transferred to any other account. By subscribing to the Paid Membership, you authorize SmaartMobile to bill the credit card you provided now and again at the beginning of any subsequent subscription period. You also authorize SmaartMobile to charge you for any sales or similar taxes that may be imposed or applicable on your subscription payments.
Reaffirmation of Authorization:
Your non-termination or continued use of the Paid Memberships reaffirms that SmaartMobile is authorized to charge the credit card information provided. SmaartMobile may submit those charges for payment and you will be responsible for such charges. This does not waive SmaartMobiles's right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially subscribed to the Paid Memberships.
Termination of Services for Non-Payment :
Where payment is required for a Paid Membership or Paid Feature and we are unable to charge your credit card for any reason, we may at our sole discretion discontinue any and all Services to you either temporarily or permanently.
Cancellation of Services:
If you cancel your account, your Paid Membership and/or Paid Features will be cancelled. All payments for Paid Memberships and Paid Features are non-refundable. You will not be eligible for a prorated refund of any portion of the unused paid services. Where billing for a service is recurring on a monthly, yearly or other periodic basis, the unused portion of the current service period will not be refunded. Paid Memberships and/or Paid Features cannot be transferred to any other account.
Virtual Currency and Virtual Products.
Virtual Goods TOU
Incorrect Payments and Errors.
In the event that you submit to us a payment for Paid Services that does not match the price for the Paid Services you selected, SmaartMobile shall have the right, in its sole and absolute discretion, to
(1) return or refund all or some of the amount of your payment,
(2) apply all or some of your payment amount to other similar Paid Services that have a purchase price less than the amount of your payment,
(3) apply all or some of the amount of your payment to the purchase of our virtual currency or
You acknowledge and agree that the availability of the App is dependent on the third party from which You downloaded or received the App (the "App Merchant"). You acknowledge that this Agreement is between You and SmaartMobile and not with the App Merchant. SmaartMobile, not the App Merchant, is solely responsible for the App and EVRY'U, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto. You agree to pay all fees charged by the App Merchant in connection with Your download of the App (if any). You agree to comply with, and Your license to use the App and EVRY'U is conditioned upon Your compliance with, all applicable third party terms of agreement when using the App. You acknowledge that to the maximum extent permissible by law, the App Merchant (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce this Agreement.
You acknowledge and agree that the App and use of EVRY'U uses network services and may incur additional network data charges (including additional charges when roaming).
If You download the App from the Apple app store (the "App Store") or use the App to run on the Apple Inc. ("Apple") operating system ("iOS"), such as with the iPhone, iPod, iPad or other related device using such iOS, the following terms will also apply and You acknowledge and agree to the following terms:
(a) Acknowledgement: SmaartMobile and You acknowledge that this Agreement is concluded between SmaartMobile and You only, and not with Apple, and SmaartMobile, not Apple, is solely responsible for the EVRY'U and the App and the content thereof. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 42, the more restrictive or conflicting terms and conditions in this Section 42 apply, but solely with respect to the use of EVRY'U and the App when used on iOS.
(b) Scope of License: The license granted to You for the App is limited to a non-transferable license to use the App on any iOS Device that You own or controls and as permitted by the Usage Rules set forth in the App Store terms of service:
(c) Maintenance and Support: SmaartMobile is solely responsible for providing any maintenance and support services with respect to EVRY'U and the App, as specified in this Agreement (if at all), or as required under applicable law. SmaartMobile and You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
(d) Warranty: SmaartMobile is solely responsible for any product warranties with respect to EVRY'U and the App, whether express or implied by law, to the extent not otherwise disclaimed. In the event of any failure of the App to conform to any applicable warranty, You may notify Apple, and Apple will refund the purchase price for the App to You; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be SmaartMobile's sole responsibility.
(e) Product Claims: SmaartMobile and You acknowledge that SmaartMobile, not Apple, is responsible for addressing any claims of You or any third party relating to EVRY'U and the App or Your possession and/or use of the App, including, but not limited to:
(i) product liability claims;
(ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and
(iii) claims arising under consumer protection or similar legislation. This Agreement does not limit SmaartMobile's liability to You beyond what is permitted by applicable law.
(f) Intellectual Property Rights: SmaartMobile and You acknowledge that, in the event of any third party claim that the EVRY'U or the App or Your possession and use of that App infringes that third party's intellectual property rights, SmaartMobile and/or You, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
(g) Third Party Beneficiary: SmaartMobile and You acknowledge and agree that Apple, and Apple's subsidiaries, are third party beneficiaries of the EULA, and that, upon Your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against You as a third party beneficiary thereof.
Any terms and conditions of this Agreement which by their nature extend beyond the termination or expiry of this Agreement shall survive the termination or expiry of this Agreement including, without limitation, Sections 11-17, 30-34, 48-59, 63-67 shall survive any termination of this Agreement.
This Agreement is governed, construed and interpreted by the law of the Province Ontario and the federal laws of Canada applicable in that Province without regards to conflict of laws principles. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Province of Ontario, Canada and the venue of the courts of Ontario sitting in the City of Toronto, Ontario, Canada in respect of any disputes relating to or arising out of this Agreement. The parties specifically disclaim the United Nations Convention on Contracts for the International Sale of Goods.
The Parties have expressly required that this Agreement, any communication and all other contracts, documents and notices relating to this Agreement be drafted in the English language. Les parties ont expressément exigé que la présente convention, la communication et tous les autres contrats, documents et avis qui y sont afférents soient rédigés dans la langue anglaise.
If any of the provisions (or parts thereof) contained in this Agreement are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining provisions (or parts thereof) of this Agreement.
The use headings are for convenience only and are not part of this Agreement.
Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties; no party is by virtue of this Agreement authorized as an agent, employee or agent representative of the other party.
Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.
You may not assign any rights or obligations under the Agreement and any purported assignment shall be ineffective. SmaartMobile may assign or delegate all rights and obligations under this Agreement without notice to You.
Should You have any questions concerning this Agreement, contact the SmaartMobile at:
65 Spring Garden Ave, Suite 2102
Toronto, ON M2N 6H9