Updated: November 1, 2021
Thank you for choosing SmarTech Services. Terms and conditions govern use of our Platform (as defined below) and Services (as defined below) and all content, services and/or products available on or through the Platform (collectively, the “SmarTech”).
SmarTech is offered to you subject to your acceptance, without modification (other than Special Terms (as defined below) agreed by the parties pursuant to these Terms of Service), of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, our Privacy Policy (as defined below) and any future modifications thereof, and procedures that may be published from time to time on the Platform or made available to you on or through SmarTech (collectively, the “Terms”). When accepted by you (as defined below), these Terms form a legally binding contract between you and Supplier (as defined below). If you are entering into these Terms on behalf of an entity, such as your employer or the company you work for, you represent that you have the legal authority to bind that entity.
PLEASE READ TERMS CAREFULLY. BY REGISTERING FOR, ACCESSING, BROWSING, AND/OR OTHERWISE USING SmarTech, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT ACCESS, BROWSE OR OTHERWISE USE THE PLATFORM OR SmarTech.
Supplier may, in its sole discretion, elect to suspend or terminate access to, or use of SmarTech to anyone who violates these Terms.
If you register for a free trial of SmarTech, the applicable provisions of these Terms will govern that free trial.
The original language of these Terms is English. In case of conflicts between the original English version and any translation, the English version shall prevail.
2. Authority to Enter into These Terms with Supplier
11. Intellectual Property Rights
12. Third-Party Sites, Products and Services
16. Termination of These Terms
17. Who You Are Contracting With
Term | Definition |
---|---|
Account | Primary means for accessing and using SmarTech. |
Activities | Tasks, events, actions, search or any associated actions that can be performed in the systems. |
Authorization | The set of rights and privileges on the website assigned to a user by a client. |
Client | A natural or legal person who has accepted these Terms with the Supplier. |
Client Data | Files and any other digital data and information, which is given to SmarTech or otherwise inserted to the System by the Client |
Content | Any data and information available through SmarTech or contained within the structure of the System, articles, documents, brochures, presentations, pictures, images, audiovisual works, other informational materials and any comments. |
Fee | Regular payment for using the activated Account. |
Files | Documents of any kind (images, word document, spreadsheets, text files, etc.) that are inserted to the System by the Client, and usually associated with a particular Account. |
Free Trial | Temporary access for the purposes of trying out the Web Site and SmarTech in accordance with any selected Plan without paying a Fee. |
Guidelines | Additional guidelines or rules applicable to specific features, applications, products, or services which may be posted from time to time on the Platform or otherwise made available on or through SmarTech. |
SmarTech Materials | Visual interfaces, graphics, design, systems, methods, information, computer code, software, services, “look and feel”, organization, compilation of the content, code, data, and all other elements of SmarTech. |
SmarTech | Web Site, Services, System, Content, Platform and all content, services and/or products available on or through the Platform; |
Plan | Various criteria related to the use and functionality of SmarTech and on which the Fee is based. |
Products | Goods or services that a Client is offering to persons and Organizations; |
Special Terms | Any particulars, specifications and conditions by which the parties have agreed to deviate from these Terms. |
Supplier | As the context requires, SmarTech; and collectively, the “Suppliers”. |
System | The integrated cloud computing solution for providing SmarTech, including applications, software, hardware, data bases, interfaces, associated media, documentation, updates, new releases and other components or materials provided therewith. |
User | A natural person granted with the Authorization to use the Account on behalf of a Client; |
Web Site | The compilation of all web documents (including images, php and html files) made available via www.smartechc.com or portal.smartechc.com or api.smartechc.com or its sub domains or domains with identical names under other top domains and owned by Supplier. |
The use of SmarTech is subject to acceptance of these Terms. To accept these Terms for itself or on behalf of a Client, a person must have the legal capacity to do so. In the case of an individual, the individual must be at least 18 years of age or have valid authorization from his/her legal representative or custodian. In the case of a legal entity, the entity must be duly incorporated and in good standing. The Terms are accepted as soon as one of the following occurs first:
Supplier reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms at any time by posting such changes on or through the Platform or SmarTech. Please check these Terms periodically for changes. Your continued use of SmarTech after such changes have been posted as provided above constitutes your binding acceptance of such changes. Such amended Terms will automatically be effective upon the earlier of (i) your continued use of SmarTech, or (ii) 30 days from posting of such modified Terms on or through the Platform. Notwithstanding the foregoing, the resolution of any dispute that arises between you and Supplier will be governed by the Terms in effect at the time such dispute arose.
4.1. Provision of SmarTech. Supplier will (a) make SmarTech, Content and Client Data available to a Client pursuant to these Terms, (b) provide applicable standard support for SmarTech to Client at no additional charge, and/or upgraded support (for an additional charge, if applicable), (c) use commercially reasonable efforts to make SmarTech available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Supplier shall give advance electronic notice as provided in the Guidelines), and (ii) any unavailability caused by circumstances beyond Supplier’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or denial of service attack. 4.2. Protection of Client Data. Supplier will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data, as described in the Guidelines. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Client Data by Supplier personnel except (a) to provide SmarTech and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.5 (Compelled Disclosure) below, or (c) as a Client or User expressly permit in writing.
5.1 Establishing an Account. Certain features, functions, parts or elements of SmarTech can be used or accessed only by holders of an Account. The person who wishes to create an Account must:
6.1 Credit Card Authorization. Supplier may seek pre-authorization of Client’s credit card account prior to your purchase of SmarTech in
order to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You authorize such
credit card account to pay any amounts described herein, and authorize Supplier to charge all sums described in these Terms to such
credit card account. You agree to provide Suppler updated information regarding your credit card account upon Supplier’s request
and any time the information earlier provided is no longer valid.
6.2 Electronic Invoice. If Supplier has not sought pre-authorization of your credit card, then before the end of each payment interval,
Client will be issued an electronic invoice for payment of the Fee of the next payment interval. Client must pay the invoice by the due
date indicated on the invoice.
6.3 Overage Charges. Upon delay with any payments, Supplier may require the Client to pay interest on the delay (penalty for late
payment) for the period as of the time the payment obligation falls due until conforming performance is rendered. The interest rate of
penalty for late payment due if SmarTech is the Supplier, shall be 1% per month; provided, however, if any interest paid to SmarTech is
determined to be in excess of the then legal maximum rate, then that portion of each interest payment representing an amount in
excess of the then legal maximum rate shall be deemed a payment of amounts owing under Section 6.2. Upon calculation of the
penalty for late payment, one year shall be deemed to contain 365 calendar days.
7.1 Uploading Client Data to Platform. If the Client uploads Client Data to the Platform, such Client Data and any processing of such Client Data must be in compliance with these Terms and applicable law. All rights, title and interest in and to the Client Data belong to the Client or third persons (including Users, persons and Organizations) whether posted and/or uploaded by you or made available on or through SmarTech by Supplier. By uploading Client Data to the Platform, Client authorizes Supplier to process the Client Data for users. The Client is responsible for ensuring that:
8.1 Use of SmarTech. Subject to these Terms and the payment of the applicable service Fee, Supplier grants Client and its authorized users a non-exclusive, non-transferable, non-sub-licensable license to use SmarTech to:
9.1 Prohibited Activities. Client and its authorized Users may use SmarTech and any part or element thereof only in the scope, with the means and for purposes as identified in these Terms and applicable law. By way of example, neither the Client nor any User may:
Supplier takes the privacy of its Clients and Users very seriously. Supplier’s Privacy Policy is hereby incorporated into these Terms by reference. Please read the Privacy Policy carefully as it governs Supplier’s collection, use, and disclosure of Client’s or User’s personal information.
11.1 SmarTech’s Intellectual Property Rights in SmarTech. SmarTech, SmarTech Materials, SmarTech trade names and trademarks, and any
parts or elements thereof are solely and exclusively owned and operated by Supplier and its third party vendors and hosting partners.
SmarTech Materials are protected by copyright, trade dress, patent, trade secrets, and trademark laws, international conventions and
treaties, and all other relevant intellectual property and proprietary rights laws. Supplier, its affiliates and licensors retains all right,
title and interest in such SmarTech, SmarTech Materials, SmarTech trade names and trademarks, and any parts or elements. Your use of
SmarTech and SmarTech Materials, and any parts or elements does not grant to you any ownership rights or intellectual property rights
therein. Any commercial or promotional distribution, publishing or exploitation of SmarTech Materials is strictly prohibited unless you
have received the express prior written permission from Supplier or the otherwise applicable rights holder. Supplier reserves all rights
to SmarTech, SmarTech Materials and SmarTech trade names and trademarks not expressly granted in the Terms.
11.2 Content Owned by SmarTech. Subject to these Terms and the payment of the applicable service Fee, Supplier grants Client and its
authorized users a non-exclusive, non-transferable, non-sub-licensable license to download a single copy of any part of the Content
solely for your personal, non-commercial use if you retain all copyright and proprietary notices that are contained in such part of the
Content. You expressly acknowledge that you do not acquire any ownership rights by downloading any copyrighted material from or
through the Platform or SmarTech. You shall not copy, distribute or publish any Content or any information obtained or derived
therefrom except as permitted on or through SmarTech or as otherwise permitted by applicable law.
11.3 Client data.
SmarTech may include links or intergrations to with other websites or services ("Linked Sites", "Partners") solely as a convenience to Clients. Supplier does not endorse
any such Linked Sites or the information, material, products, or services contained on or accessible through Linked Sites. Furthermore,
Supplier makes no express or implied warranties with regard to the information, material, products, or services that are contained on
or accessible through Linked Sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND
SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
Any content referred to as community provided is provided by third parties and not developed or maintained by SmarTech. By using
any community marked code or libraries in your software development, you acknowledge and agree that SmarTech is not in any way
responsible for the performance or damages caused by such community provided code or library.
UNLESS OTHERWISE EXPRESSLY STATED BY SUPPLIER, SmarTech, SmarTech MATERIAL, AND ANY CONTENT, SERVICES, OR FEATURES
MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH SmarTech ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT
WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW,
SUPPLIER AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS,
CORRECTNESS, ACCURACY, AND RELIABILITY.
UNLESS OTHERWISE EXPRESSLY STATED BY SUPPLIER, SUPPLIER AND ITS AFFILIATES DO NOT WARRANT THAT SmarTech AND ANY
CONTENT, CLIENT DATA SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH SmarTech WILL BE
UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT SmarTech AND ANY CONTENT, CLIENT DATA,
SERVICES, OR FEATURES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH SmarTech OR THE SERVER THAT MAKES THEM
AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
UNLESS OTHERWISE EXPRESSLY STATED BY SUPPLIER, SUPPLIER AND ITS AFFILIATES DO NOT WARRANT OR MAKE ANY
REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PLATFORM, SmarTech, SmarTech MATERIAL OR ANY
LINKED SITES, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
THE LAWS OF CERTAIN COUNTRIES AND STATES DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR
LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR
LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You agree to defend, indemnify and hold harmless Supplier and its affiliates, and their respective directors, officers, employees and agents, from any claims, losses, damages, liabilities, including attorney’s fees, arising out of your use or misuse of SmarTech, SmarTech Materials, representations made to the Supplier, its affiliates and/or third parties, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants. Supplier reserves the right, at its own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Supplier, and you agree to cooperate with such defense of these claims.
15.1 No Liability: Supplier shall not be liable to the Client or User for any consequences resulting from:
16.1 For Convenience. These Terms may be terminated for convenience upon written notice to the other party as indicated in the “Notice” Section below:
17.1 General. The Supplier with whom Client is contracting depends on the domicile of the Client. The Supplier determines the
domicile of the Client based on the country indicated in the billing address of the User who concludes these Terms on behalf of the
Client. During the Free Trial, the Supplier determines the domicile of the Client based on the location indicated in the IP-address of the
User who concludes these Terms on behalf of the Client. By accepting these Terms, the Client is contracting with the Supplier listed
opposite such Client’s domicile in the following table.
Client's domicile: | Supplier: |
---|---|
United States of America | SmarTech Consulting LLC. |
Client's domicile: | Governing law; Dispute Resolution: | |
---|---|---|
United States of America and all of its territories, Canada | These Terms (and any further rules, policies or guidelines incorporated by reference therein) shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflicts of law. Unless otherwise agreed in writing by the Client and SmarTech, any dispute arising out of or relating to these Terms, or the breach thereof, shall be governed by the terms set forth in this Section 17.2. |
We each agree that we shall bring any dispute against the other in our respective individual capacities and not as a plaintiff or class member in any purported class, representative proceeding or as an association. In addition, we each agree that disputes shall be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions.
If any part of this provision is ruled to be unenforceable, then the balance of this provision shall remain in full effect and construed and enforced as if the portion ruled unenforceable were not contained herein. Notwithstanding the foregoing, you and the Suppliers agree that nothing herein shall be deemed to waive, preclude, or otherwise limit either party’s right to (i) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (ii) seek injunctive relief in a court of law, or (iii) to file suit in a court of law to address intellectual property infringement claims.
18.1 Relationship of the Parties: The parties will act solely. These Terms shall not be construed as creating an agency, partnership, joint
venture, fiduciary duty, or any other form of legal association between the Client and either Supplier, and the Client shall not
represent to the contrary, whether expressly, by implication, appearance or otherwise. These Terms are not for the benefit of any
third parties.
18.2 Severability: If any term, condition or provision of these Terms is held to be invalid, unenforceable or illegal in whole or in part for
any reason, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties. The validity
and enforceability of the remaining terms, conditions or provisions, or portions of them, shall not be affected.
18.3 Assignment: Client may not, directly or indirectly, in whole or in part, by operation of law or otherwise, assign or transfer these
Terms or delegate any of its rights and/or obligations under these Terms without Supplier’s prior written consent. Any attempted
assignment, transfer or delegation without such prior written consent will be void and unenforceable. Notwithstanding the foregoing,
the Client, or its permitted successive assignees or transferees, may assign or transfer these Terms or delegate any rights or
obligations hereunder without consent: (1) to any entity controlled by, or under common control with the Client, or its permitted
successive assignees or transferees; or (2) in connection with a merger, reorganization, transfer, sale of assets or product lines, or
change of control or ownership of the Client, or its permitted successive assignees or transferees.
18.4 No Waiver: Failure of either Party to exercise or enforce any provision of or any of its rights under these Terms shall not be
deemed a waiver of future enforcement of that or any other provision or right.
18.5 Notices: Except as otherwise specified in these Terms, all notices related to these Terms will be in writing and will be effective
upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable
claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to you
will be addressed to the relevant billing contact designated by you. All other notices to you will be addressed to the relevant Services
system administrator designated by you.