Updated: Effective November 29, 2018
WEB HOSTING AND SOFTWARE LICENSE AGREEMENT
This Web Hosting and Software License Agreement, hereinafter referred to as "Agreement," is entered into by and between SmartEtailing, Inc., hereinafter referred to as "SmartEtailing," and you, hereinafter referred to as "Subscriber."
A. SmartEtailing is a provider of website internet services.
B. Subscriber is an individual or entity engaged in business and desiring to contract with SmartEtailing for the purpose of establishing a website and utilizing related services offered by SmartEtailing, as set forth in this Agreement.
NOW, THEREFORE, in consideration of their mutual promises set forth in this Agreement, and for good and valuable consideration, SmartEtailing and Subscriber agree as follows:
1.0. EFFECTIVE DATE.
This Agreement shall be effective for all purposes (Effective Date) as of the date Subscriber electronically transmits to SmartEtailing Subscriber's agreement to be bound by the terms and conditions hereof. Such transmission is accomplished by clicking the button so indicating at the end of this Agreement.
2.0. EXPLANATION OF TERMS.
As used in this Agreement, the following terms shall have the meanings set forth below:
2.1. Activation Date. The "Activation Date" shall be the date SmartEtailing provides Subscriber a user identification and password to access the SmartEtailing Services, enabling Subscriber to access the SmartEtailing server and upload Subscriber Content.
2.2. Subscriber Website. "Subscriber Website" means the website provided to Subscriber by SmartEtailing pursuant to this Agreement.
2.3. Subscriber Content. "Subscriber Content" means any and all images, artwork, copy, information (including, without limitation, information in any file in any format), data, knowledge, computer software, and other materials of any kind provided by Subscriber for use with Subscriber's Website.
2.4. Library Materials. "Library Materials" shall mean any and all proprietary images, artwork, copy, information, data, or knowledge licensed to Subscriber hereunder as part of the SmartEtailing Services. The Library Materials shall consist of Materials located or originating from the administrative areas of Subscriber's Website, FTP site provided by SmartEtailing, or web services URL’s provided for content syndication, where applicable. SmartEtailing reserves the right to modify, remove, or add to the list of Library Materials available to Subscriber at any time.
2.5. SmartEtailing Tools. "SmartEtailing Tools" means the computer software and other materials, including HTML script or code, developed by SmartEtailing or its suppliers, and provided under this Agreement for the use of Subscriber to create, maintain, update and upgrade Subscriber's Website. SmartEtailing reserves the right to modify, remove, or add to the list of SmartEtailing Tools available to Subscriber at any time.
2.6. SmartEtailing Proprietary Materials. "SmartEtailing Proprietary Materials" means the Subscriber Website, Library Materials, and SmartEtailing Tools, which are owned by SmartEtailing.
2.7. SmartEtailing Services. "SmartEtailing Services" means the services to be provided by SmartEtailing to Subscriber as set forth in the part of this Agreement entitled "SmartEtailing Services."
3.0. SMARTETAILING SERVICES.
3.1. Hosting Services. During the term of this Agreement, SmartEtailing shall host the Subscriber Website on SmartEtailing servers.
3.2. SmartEtailing Proprietary Materials. SmartEtailing shall provide Subscriber use of the SmartEtailing Proprietary Materials, strictly in accordance with the license granted herein, for the sole purpose of creating, maintaining, updating and upgrading the Subscriber Website. Subscriber agrees that it does not own the SmartEtailing Proprietary Materials and shall make no claim of such ownership.
3.3. No Subscriber Internet Connection Equipment Provided. SmartEtailing does not provide any modem, computer, or any other equipment or system for Subscriber to connect to the Internet. Subscriber is responsible for its modems, computers, operating systems and connection devices necessary for connecting to the Internet through which Subscriber can access the SmartEtailing Services.
3.4. Revision of SmartEtailing Services. SmartEtailing may modify, suspend or discontinue any aspect of the SmartEtailing Services at any time, including the availability of any SmartEtailing Proprietary Materials. SmartEtailing may also impose limits on certain features and services or restrict Subscriber's access to parts or all of the SmartEtailing Services without notice or liability of any kind.
3.5. No Resale of SmartEtailing Services. Subscriber agrees that this Agreement is personal to Subscriber and that Subscriber may not resell, lease, license, assign or redistribute any portion of the SmartEtailing Services to any third party.
3.6. Technical Support. SmartEtailing shall provide technical support to Subscriber which shall consist, at a minimum, of on-line help instructions relating to use by Subscriber of SmartEtailing Proprietary Materials. Some levels of service may have access to additional types of support at SmartEtailing's sole discretion.
4.0. FEES AND PAYMENT.
4.1. Fees. Initial setup and monthly fees for use of the SmartEtailing Services have been previously provided to Subscriber, and are incorporated in this Agreement by reference and made a part hereof.
4.2. Payment. SmartEtailing's initial setup fees are to be paid in advance of Subscriber's account being activated. SmartEtailing's monthly billing cycle corresponds to calendar months and commences upon the Activation Date of Subscriber's Website. All billing will be charged to Subscriber's credit card or bank account. SmartEtailing will charge Subscriber monthly in advance for its Services. On Subscriber's first bill, Subscriber will be charged for that portion of the month in which Subscriber's monthly billing cycle began. Monthly, thereafter, SmartEtailing will charge Subscriber's credit card or bank account the monthly fee for the new month, plus other charges authorized by this Agreement, if any.
4.3. Fee Changes. SmartEtailing fees may vary from time to time. SmartEtailing reserves the right to change its fees at any time provided, however, that, whenever possible, SmartEtailing will give Subscriber reasonable notice of such change. From time to time, SmartEtailing may add or modify certain services related to the SmartEtailing Services, and SmartEtailing reserves the right to charge Subscriber additional or different fees in consideration for providing such new or modified services to Subscriber.
4.4. Payment Default. In the event Subscriber's payments are declined for any reason, Subscriber will be deemed to be in default and in material breach of this Agreement. In such event, SmartEtailing may, in its sole discretion, (a) charge Subscriber a late fee during each month that payment in full is not made and/or (b) terminate this Agreement in accordance with the termination provisions below. In the event SmartEtailing resorts to legal action to recover monies due, Subscriber agrees to reimburse SmartEtailing for all costs and expenses incurred to recover such monies, including reasonable attorneys’ fees.
5.0. TERM AND TERMINATION.
5.1. Term. This Agreement shall commence as of the Effective Date and shall be effective until terminated as provided below.
5.2.1. Termination by Subscriber. Subscriber may terminate this Agreement by written notice to SmartEtailing. Termination shall be effective 30 days following receipt of the written notice by SmartEtailing.
5.2.2. Termination by SmartEtailing. SmartEtailing may terminate this Agreement at any time by notice to Subscriber, conveyed via telephone, facsimile or transmitted electronically. Termination shall be effective at the end of the current billing cycle unless stated otherwise in the termination notice.
5.3. Effect of Termination.
5.3.1. Subscriber Charges. In the event Subscriber terminates this Agreement within 30 days of the Activation Date, SmartEtailing shall discontinue all billings and refund to Subscriber all funds received by SmartEtailing on Subscriber's account. If Subscriber terminates this Agreement at any time after 30 days following the Activation Date, the setup fee and any monthly fees for SmartEtailing Services rendered by SmartEtailing shall be nonrefundable, but SmartEtailing shall discontinue further billings per Section 5.2.2.
5.3.2. Subscriber to Cease Use of SmartEtailing Proprietary Materials. Upon the termination of this Agreement, all rights of Subscriber under this Agreement shall terminate and all rights of Subscriber under the license granted in this Agreement shall automatically revert to SmartEtailing. Subscriber shall immediately discontinue the use of the SmartEtailing Proprietary Materials and thereafter shall no longer use or have the right to use the SmartEtailing Proprietary Materials or any variation or simulation thereof, or any word or trademark similar thereto, or to directly or indirectly develop, create, market, distribute, sell, license or sublicense, or advertise any products and/or services in connection with the SmartEtailing Proprietary Materials. Upon the termination or expiration of this Agreement, Subscriber shall provide SmartEtailing with written certification that Subscriber has destroyed any and all material upon or in which SmartEtailing Proprietary Materials are contained, affixed, or used. Subscriber acknowledges that Subscriber's failure to cease the use of the SmartEtailing Proprietary Materials upon termination or expiration of this Agreement shall result in immediate and irremediable damage to SmartEtailing. Subscriber acknowledges and admits that there is no adequate remedy at law for such failure, and agrees that in the event of such failure, SmartEtailing shall be entitled to equitable relief by way of temporary and permanent injunction and such other and further relief as any court with jurisdiction may deem just and proper.
6.0. SOFTWARE LICENSE.
6.1. Grant of License by SmartEtailing. SmartEtailing hereby grants to Subscriber, and Subscriber hereby accepts, a personal, non-transferable, non-exclusive, limited license, for the term of this Agreement, to use one (1) copy of the SmartEtailing Proprietary Materials solely in connection with operating the Subscriber Website (the "SmartEtailing License"). Nothing herein shall be construed to be, and SmartEtailing does not grant to Subscriber, any right or license in any SmartEtailing proprietary images, artwork, copy, information, data, knowledge, computer software or any other material or information of any kind exclusive of this limited license to the SmartEtailing Proprietary Materials.
6.2. No Sublicense. Nothing herein shall be construed to be, and SmartEtailing does not grant to Subscriber, any right or license to enter into sublicenses or distribution agreements with respect to any portion of the SmartEtailing Proprietary Materials.
6.3. Ownership. The SmartEtailing Proprietary Materials are owned by SmartEtailing. The SmartEtailing License confers no title or ownership in the SmartEtailing Proprietary Materials and is not a sale of any rights in the SmartEtailing Proprietary Materials.
6.4. Copyright Notices. The SmartEtailing Proprietary Materials are protected by copyright pursuant to U.S. copyright laws, international conventions and other copyright laws, and are owned or controlled solely by SmartEtailing. [MM1] Subscriber shall abide by any and all additional copyright notices, information, or restrictions contained in the SmartEtailing Proprietary Materials.
6.5. SmartEtailing License Restrictions. Except as expressly permitted in this Agreement, Subscriber represents, warrants and covenants that Subscriber shall not reproduce, modify, publish, transmit, participate in the transfer or sale of, distribute, publicly exhibit, or in any way exploit, any of the SmartEtailing Proprietary Materials, in whole or in part.
6.6 No Decompilation, Etc. Subscriber represents, covenants, and warrants that it shall not, itself or as the agent or employee of any other person, directly or indirectly, commit, cause, or contribute to the reverse engineering, decompilation, or translation of, or development of derivative works based on, the SmartEtailing Proprietary Materials.
6.7. No Contesting of Rights. Subscriber acknowledges and agrees that neither during the existence of this Agreement nor after the termination or expiration hereof, shall Subscriber directly or indirectly claim, contest or aid in claiming or contesting the validity or ownership of the SmartEtailing Proprietary Materials or take any action whatsoever in derogation of SmartEtailing's rights therein or in breach of any terms and conditions contained in this SmartEtailing License.
6.8 Reservation of Rights. Any and all rights to use any SmartEtailing Proprietary Materials not expressly granted to Subscriber under this Agreement are hereby reserved to SmartEtailing (the "SmartEtailing Reserved Rights"). Nothing contained in this Agreement shall affect, impair, or limit in any way SmartEtailing's rights to exploit fully any or all of the SmartEtailing Reserved Rights.
6.9. SmartEtailing Trademarks. Nothing herein shall be construed to be, and SmartEtailing does not grant to Subscriber, any right or license in any SmartEtailing trademark, tradename, service mark, insignia, slogan, name, emblem, logo, symbol, design and/or other identifying characteristics owned by or associated with SmartEtailing, in any manner whatsoever.
6.10. Grant of License by Subscriber. Subscriber hereby grants to SmartEtailing a perpetual, non-exclusive license to reproduce, license, publish, distribute, transmit, broadcast, or publicly exhibit, display, perform or digitally perform and otherwise use the Subscriber Content as necessary to provide the SmartEtailing Services to Subscriber hereunder. Subscriber hereby agrees to now and forever release, indemnify, defend and hold harmless SmartEtailing, its affiliates, subsidiaries, directors, officers, advertising agencies, suppliers, agents and employees, from any and all losses, damages, rights, claims and actions with respect to, or in any way arising from, the Subscriber Content or SmartEtailing's use of the Subscriber Content (including, without limitation, any alleged or actual infringement of any proprietary rights, rights of privacy and publicity, moral rights, and rights of attribution in connection with the Subscriber Content).
6.11. Proprietary Rights. Subscriber acknowledges and agrees that SmartEtailing owns and shall retain all rights, title and interest in and to the SmartEtailing Proprietary Materials, including, without limitation, all copies thereof and all rights to patents, copyrights, trademarks, service marks, trade secrets and other intellectual property rights inherent therein and appurtenant thereto. Subscriber shall retain all rights, title and interest in and to the Subscriber Content, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein or appurtenant thereto.
7.0. Subscriber Responsibilities.
Subscriber agrees that:
7.1. Subscriber shall comply with all international, federal, state, and local laws and regulations applicable to Subscriber's use of the SmartEtailing Services and/or operation of the Subscriber Website.
7.2. Subscriber shall display, advertise, and offer for sale on the Subscriber Website only products Subscriber is contractually or otherwise lawfully authorized to display, advertise, or offer for sale. If SmartEtailing is informed that Subscriber is not an authorized user of product content, is not an authorized seller of products, or is otherwise in violation of vendor sales policies with respect to products, Subscriber agrees that SmartEtailing may in its complete discretion take any action it deems appropriate, including removal of product postings or terminating this Agreement.
7.3. SmartEtailing services and content licenses will only be made available to businesses that have brick-and-mortar commercially zoned retail storefronts. Subscriber shall at all times display on subscriber's website a reasonably noticeable reference to subscriber's retail store location(s). Such reference shall include at a minimum, a complete street address, phone number, hours of operation, and retail store name (DBA) if different than subscriber's website branding.
7.4. Subscriber shall establish Subscriber's own privacy and other policies in relation to Subscriber's web customers, shall make such policies known to its customers, and shall adhere to such policies.
7.5. Subscriber shall, in a timely, professional, business-like, and competent manner, monitor customer orders placed through use of the Subscriber Website, respond to such orders, ship merchandise ordered, and perform all customer-service-related tasks.
7.6. Subscriber shall be solely responsible for all taxes and bank issues related to e-commerce conducted by Subscriber on the Subscriber Website, and SmartEtailing shall not be responsible for any taxes or fees Subscriber may incur.
7.7. Subscriber shall be solely responsible for maintaining the confidentiality of Subscriber's password and shall be liable for, and shall defend and hold SmartEtailing harmless from, any harm from disclosing or allowing disclosure of any password or from use by any person of Subscriber's password to gain access to Subscriber's account.
7.8. SmartEtailing shall take commercially reasonable measures to protect Subscriber's data, files, email and other information that SmartEtailing holds in computer storage, but cannot guarantee that Subscriber’s data will never be lost, corrupted, or inaccessible. Subscriber shall maintain at least one (1) back-up copy of such materials and information to protect against accidental or other loss. SmartEtailing will endeavor to conform to applicable PCI-DSS security standards for credit card transactions and associated data.
7.9. Subscriber shall be solely responsible for Subscriber Content, quality, performance, and all other aspects of the goods or services advertised, displayed, or offered for sale, and the information contained in or provided through Subscriber's Website.
7.10. Subscriber shall keep all Subscriber information, including email address and credit card information, up to date and accurate as provided to SmartEtailing.
7.11. (i) Subscriber shall not use the Subscriber Website or the SmartEtailing Services to post, transmit, display, distribute or promote any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, racist, sexually explicit or indecent material of any kind; (ii) Subscriber shall not use the Subscriber Website or the SmartEtailing Services to encourage, promote, solicit or commit conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law; (iii) Subscriber shall not use the Subscriber Website or the SmartEtailing Services to post, transmit, display, distribute or promote in any way, information, software, or other material that violates, plagiarizes or infringes the rights of third parties including, without limitation, copyright (including, without limitation, offering pirated computer programs or links to such programs, information used to circumvent manufacturer-installed copy-protect devices, including serial registration numbers for software programs, or any type of cracker utilities), trademark, patent, trade secret, rights of privacy or publicity or any other proprietary right; (iv) Subscriber shall not use the Subscriber Website or the SmartEtailing Services to promote physical harm or injury against any group or individual; (v) Subscriber shall not use the Subscriber Website or the SmartEtailing Services to post, transmit, display, distribute or promote material that is exploitive of others; (vi) Except where approved by SmartEtailing in advance, Subscriber shall not use the Subscriber Website or the SmartEtailing Services to post, transmit, display, distribute, or promote material of any kind which constitutes requests for money, petitions for signature, or chain letters; (vii) Except where pre-approved by or provided by SmartEtailing, Subscriber shall not develop restricted or password-only access pages, or hidden pages or images (those not linked to from another accessible page); (viii) Subscriber shall not use the Subscriber Website or the SmartEtailing Services as storage for remote loading or as a door or signpost to another server; (ix) Subscriber shall not develop pages on the Subscriber Website that consist of hyperlinks to content or materials of any kind in violation of the restrictions contained in this Section 7.12; (x) Subscriber shall not restrict or inhibit any other user from using and enjoying the user's Subscriber Website or the SmartEtailing Services; (xi) Subscriber shall not use the Subscriber Website or the SmartEtailing Services to post, transmit, display, distribute or promote material of any kind that contains a virus or other harmful component; and (xii) Subscriber shall not use the Subscriber Website or the SmartEtailing Services to post, transmit, display, distribute or promote information or material of any kind that constitutes or contains false or misleading indications of origin or statements of fact.
7.12. SmartEtailing shall be under no obligation to monitor Subscriber's compliance with the terms and conditions of this Agreement, but SmartEtailing shall have the right to do so.
7.13. Without limiting other remedies, SmartEtailing may restrict, suspend or terminate Subscriber's service and user accounts, prohibit access to Subscriber's website, remove hosted content, and take technical and legal steps to keep users off of the Subscriber Website if it is believed that Subscriber is creating problems, possible legal liabilities or acting inconsistently with the letter or spirit of Subscriber’s responsibilities expressed in this Agreement.
8.0 SUBSCRIBER CONTENT.
Subscriber acknowledges that Subscriber is solely responsible for the Subscriber Content and that SmartEtailing has no obligation under this Agreement for monitoring or verifying any information or materials included as part of the Subscriber Content. Notwithstanding the preceding sentence, SmartEtailing reserves the right at all times to disclose any Subscriber Content, in whole or in part, as necessary to satisfy any law, regulation or government request, or to edit, or remove any Subscriber Content, in whole or in part, that in the sole and exclusive discretion of SmartEtailing, are in violation of this Agreement. SmartEtailing reserves the right to remove the Subscriber Website from the SmartEtailing servers if the Subscriber Website, in whole or in part, and in the sole and exclusive discretion of SmartEtailing, is in violation of this Agreement.
9.0. SERVICE LEVEL GUARANTEE.
SmartEtailing guarantees that the Subscriber Website shall operate properly 99% of the time during each calendar month. In the event the Subscriber Website fails to operate properly more than 1% of the time during a calendar month, and Subscriber reports such outage to SmartEtailing in writing within seven (7) days thereof, then SmartEtailing shall credit Subscriber a percentage of the monthly service fee equal to the difference between 99% and the percent of time during the calendar month that the Subscriber Website was operating properly. The credit shall be applied to the next monthly fee billing. This Guarantee shall not apply in the event of Force Majeure (Section 15.2), scheduled maintenance periods, an inability to access other applications or scripts running on the server, or if Subscriber's account is not in good standing at the time of the outage.
10.0. THIRD PARTY SERVICES.
10.1. In addition to this User Agreement, you also agree to be bound by the additional service-specific terms applicable to services you purchase from, or that are provided by, SmartEtailing’s partners or other third parties.
10.2. SmartEtailing may from time to time recommend, provide you with access to, or enable third party software, applications (“Apps”), products, services or website links (collectively, “Third Party Services”) for your consideration or use. Such Third Party Services are made available only as a convenience, and your purchase, access or use of any such Third Party Services is solely between you and the applicable third party services provider (“Third Party Provider”). Any use by you of Third Party Services offered through the Services or SmartEtailing’s Website is entirely at your own risk and discretion, and it is your responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them. In some instances, SmartEtailing may receive a revenue share from Third Party Providers that SmartEtailing recommends to you.
10.3. We do not provide any warranties with respect to Third Party Services. You acknowledge that SmartEtailing has no control over Third Party Services and shall not be responsible or liable to anyone for such Third Party Services. The availability of Third Party Services on SmartEtailing’s Websites or the integration or enabling of such Third Party Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with SmartEtailing. SmartEtailing does not guarantee the availability of Third Party Services and you acknowledge that SmartEtailing may disable access to any Third Party Services at any time in its sole discretion and without notice to you. SmartEtailing is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service. SmartEtailing strongly recommends that you seek specialist advice before using or relying on Third Party Services, to ensure they will meet your needs. In particular, tax calculators should be used for reference only and not as a substitute for independent tax advice when assessing the correct tax rates you should charge to your customers.
10.4. If you install or enable a Third Party Service for use with SmartEtailing, you grant us permission to allow the applicable Third Party Provider to access your data and to take any other actions as required for the interoperation of the Third Party Service with SmartEtailing, and any exchange of data or other interaction between you and the Third Party Provider is solely between you and such Third Party Provider. SmartEtailing is not responsible for any disclosure, modification or deletion of your data, or for any corresponding losses or damages you may suffer, as a result of access by a Third Party Service or a Third Party Provider to your data or other materials.
10.5. Under no circumstances shall SmartEtailing be liable for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or your contractual relationship with any Third Party Provider. These limitations shall apply even if SmartEtailing has been advised of the possibility of such damages. The foregoing limitations shall apply to the fullest extent permitted by applicable law.
10.6. You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, SmartEtailing partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your use of a Third Party Service or your relationship with a Third Party Provider.
10.7. SmartEtailing does not design software releases to accommodate for unauthorized Third Party Services and is therefore not liable for ongoing functionality with software updates. Unauthorized Third Party Services may not be compatible with current or future functionality of your SmartEtailing website. Use of unauthorized Third Party Services may degrade the functionality of your SmartEtailing website.
The Internet is an international computer network of both government and non-government inter-operable packet switched data networks. The Internet is not owned, operated or managed by, or in any way affiliated with SmartEtailing or any of SmartEtailing's affiliates. SmartEtailing cannot and does not guarantee that the SmartEtailing Services will permit users or others access to the Subscriber Website or other Internet access that is sufficient to meet Subscriber's needs. Subscriber agrees that its use of the SmartEtailing Services and the Internet is solely at Subscriber's risk and is subject to all applicable local, state, national and international laws and regulations. SmartEtailing assumes no responsibility for any commercial transactions attempted or completed involving the SmartEtailing Services. SmartEtailing does not own or control all of the various facilities and communication lines through which access may be provided. Accordingly, SmartEtailing assumes no responsibility for the security of the Subscriber Website including, but not limited to user access. It is SmartEtailing's policy to cooperate with law enforcement authorities and to notify such authorities if it suspects that Subscriber is engaged in illegal activities. Subscriber acknowledges and understands that anyone, including a minor, who has access to Subscriber's user identification and password, can also gain access to the SmartEtailing Services. Subscriber also acknowledges and agrees that (a) it is responsible for developing and maintaining procedures (apart from the SmartEtailing Services) to protect Subscriber Content, including making appropriate back-up copies of Subscriber Content; and (b) SmartEtailing is not responsible for backup and restoration of Subscriber Content. For the purposes of network maintenance, SmartEtailing may use, copy, display, store, transmit, translate, rearrange or reformat, view and distribute Subscriber Content to multiple domestic and international servers. Subscriber agrees that access to Subscriber Content will not prohibit or prevent SmartEtailing from developing or marketing any offering or product. SmartEtailing is not responsible for transmission errors, disclosure, erasure, or corruption of security of data or Subscriber Content.
12.0. SUBSCRIBER WARRANTIES.
Subscriber represents and warrants that: (i) Subscriber owns, possesses or controls all right, title and interest to the Subscriber Content; (ii) Subscriber has the full and unrestricted right to enter into this Agreement and Subscriber has and shall maintain all rights in and to the Subscriber Content that are necessary to grant to SmartEtailing the rights granted in this Agreement; (iii) the Subscriber Content is true and accurate and does not and will not contain any misrepresentations of fact; (iv) the reproduction, licensing, use, publication, distribution, transmission, broadcast, or public exhibition, display, performance or digital performance of the Subscriber Content as authorized herein, and all other use thereof in accordance with this Agreement, does not and will not, (a) violate or infringe the civil, contract or property rights, copyrights, trademark rights, rights of privacy or publicity, or other rights of any person or entity, (b) constitute false or misleading indications of origin; (c) slander, libel or defame any person or entity; (d) cause injury of any kind to any person or entity; or (e) violate any applicable laws, rules, regulations or other governmental regulations; (v) Subscriber is at least eighteen (18) years old; (v) Subscriber has, and shall maintain, from the Effective Date of this Agreement through the termination or expiration of this Agreement, a valid SmartEtailing internet account registered in Subscriber's name; and (vi) this Agreement has been duly and validly entered into by Subscriber and constitutes the valid and binding agreement of Subscriber, enforceable against Subscriber in accordance with its terms.
13.0. SUBSCRIBER INDEMNIFICATION.
Subscriber hereby agrees to indemnify, defend and hold harmless SmartEtailing, its subsidiaries and affiliates, its directors, officers, employees, information providers, agents, licensors and licensees (“Affiliates”), and defend any action brought against same with respect to any and all costs, claims, demands, liabilities, losses, damages, judgments, settlements, costs and expenses (including attorneys' fees), asserted by a third party (a “Third Party Claim”), arising out of or in connection with the Subscriber Content, Subscriber's operation of the Subscriber Website or any other acts by Subscriber in connection with Subscriber's use of the SmartEtailing Services and the SmartEtailing Proprietary Materials, including, without limitation: (i) any claim which if true, would constitute a breach of any of Subscriber's representations, warranties, covenants or agreements hereunder; (ii) claims arising from the negligence or willful misconduct of Subscriber; (iii) any actual or alleged infringement or violation of any patent, trademark, trade name, copyright, trade secret, license or any other third party contract or other right (including, but not limited to, misappropriation of trade secrets or violation of the right of publicity or privacy); (iv) claims for bodily injury (including death) and property damage; and (v) any claim for payment of compensation or salary asserted by an employee, subcontractor, agent or licensor of Subscriber. To the extent permitted by applicable law, Subscriber acknowledges and assumes all risk that the SmartEtailing Proprietary Materials, the SmartEtailing Services, or a portion of either, may infringe upon the patent or other proprietary rights of a third party, and acknowledges that such are provided “AS-IS”. Subscriber specifically agrees to defend indemnify and hold SmartEtailing and its Affiliates harmless from any claim of infringement or violation of intellectual property rights related to Subscriber’s use of the SmartEtailing Proprietary Materials or the SmartEtailing Services. SmartEtailing reserves for itself, at its own option, the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of actions which are brought against SmartEtailing herein under the terms and provisions of this Article and Subscriber shall in no event settle any such action without SmartEtailing's prior written consent. This entire Article 12 shall survive any expiration or termination of this Agreement.
14.0. LIMITATION OF LIABILITY.
SUBSCRIBER AGREES THAT SMARTETAILING SERVICES ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS.
SMARTETAILING'S LIABILITY TO SUBSCRIBER UNDER THIS AGREEMENT IS LIMITED TO THE SERVICE LEVEL GUARANTEE SET FORTH AT ARTICLE 9.0, ABOVE. SMARTETAILING DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTY THAT SMARTETAILING SERVICES OR NETWORK TRANSPORT WILL BE UNINTERRUPTED OR ERROR FREE. IN NO EVENT SHALL SMARTETAILING OR ANY OTHER PARTY INVOLVED IN PROVIDING SERVICES UNDER THIS AGREEMENT BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE SMARTETAILING SERVICES, WHETHER ARISING IN CONTRACT OR IN TORT, OR RESULTING FROM THE FAULT OR NEGLIGENCE OF SMARTETAILING, EVEN IF SMARTETAILING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SMARTETAILING DOES NOT MONITOR OR EXERCISE CONTROL OVER THE SUBSCRIBER CONTENT OR THE INFORMATION RESIDING ON ITS WEB HOSTING SERVERS OR TRANSMITTED THROUGH ITS SYSTEM.
SMARTETAILING MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH THE SMARTETAILING SERVICES, AND SUBSCRIBER UNDERSTANDS AND AGREES THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT SUBSCRIBER'S OWN RISK. THE FOREGOING DISCLAIMER SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
15.0. MODIFICATION OF AGREEMENT.
SmartEtailing reserves the right, at its sole discretion, to modify, add, or remove any portion of this Agreement, in whole or in part, at any time. The most current version of this document will always be accessible from the administrative area of client’s website. Contact Support@SmartEtailing.com for further information. Subscriber agrees that it is Subscriber's responsibility to review Agreement with sufficient frequency to assure that Subscriber becomes aware in a timely manner of changes to this Agreement.
16.0. MISCELLANEOUS PROVISIONS.
16.1. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and there are no representations, understandings or agreements that are not fully expressed in this Agreement.
16.2. Force Majeure, Etc. Except for the payment of any monies due, if the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God, or any other cause beyond the control of that party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such cause.
16.3. No Assignment By Subscriber. Subscriber shall not assign, without the prior written consent of SmartEtailing, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise, and any attempt to do so shall be deemed a material breach of this Agreement.
16.4. Notices. Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be delivered in the manner specified in the provision of this Agreement requiring or authorizing such notice or, if the provision of this Agreement requiring or authorizing such notice does not specify the manner of delivering such notice, then notice by Subscriber to SmartEtailing shall be sent by United States Mail to the following address: SmartEtailing, Inc., 6707 Winchester Circle Suite 400, Boulder, CO 80301; and notice to SmartEtailing to Subscriber shall be either sent by United States Mail to the latest mailing address provided to SmartEtailing by Subscriber or by email to the latest email address provided to SmartEtailing by Subscriber, whichever method SmartEtailing shall choose.
16.5. Waiver. The failure of SmartEtailing to partially or fully exercise any right or the waiver by SmartEtailing of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement. Any cause of action Subscriber may have with respect to the SmartEtailing Services must be commenced within one (1) year after the claim or cause of action arises.
16.6. Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
16.7. Written Agreement. The parties agree that this Agreement shall be deemed for all purposes, including any statute or law requiring agreements to be in writing, to be a written agreement, and neither party shall, in any action by the other party to enforce this Agreement, make any claim or defense that alleges this Agreement is other than a written agreement.
16.8. Governing Law. This Agreement, and the provisions thereof, shall be governed by and construed in accordance with the laws of the State of Minnesota, without regard to its conflicts of laws rules.
16.9. Place of Contracting. This Agreement is entered into for all purposes in the County of Hennepin, State of Minnesota.
16.10. Consent To Jurisdiction. Subscriber hereby consents to the jurisdiction of the courts of the State of Minnesota over Subscriber and over the subject matter in any legal action brought by SmartEtailing or Subscriber to interpret or enforce any provision of this Agreement or resolve any other dispute between the parties involving or arising from this Agreement.
16.11. Costs and Attorneys' Fees. In the event legal action is brought by either party to interpret or enforce any provision of this Agreement or resolve any other dispute between the parties involving or arising from this Agreement, the prevailing party in such action shall be entitled to recover its reasonable attorneys' fees from the other party.