(LAST REVISION: December 10th, 2015)
This SmarterMe Service Agreement (this “Agreement”) contains the terms and conditions that govern the access and use of the SmarterMe Service (as defined below) and is entered into by and between SmarterMe, Inc. (“SmarterMe”) and the customer (“Customer”) identified in the corresponding SmarterMe Service order (“Order”) referencing this Agreement. SmarterMe and Customer are sometimes referred to herein individually as a “Party” and together as the “Parties.” This Agreement is effective and Customer agrees to be bound by its terms when Customer either first accesses the SmarterMe Service or upon the first Order Effective Date (defined below), whichever occurs first (“Agreement Effective Date”). If the person entering into this Agreement is doing so on behalf of a legal entity, such person represents that it has the legal authority to bind such legal entity to this Agreement. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
Section 1. Definitions
When used in this Agreement with initial letters capitalized, in addition to terms defined elsewhere in this Agreement, the following terms have the following meaning:
“Account(s)” means all User content account(s) created by the User for itself or on behalf of Customer) within the SmarterMe Service.
“Beta Services” means SmarterMe Services or SmarterMe Software that are not generally available to customers.
“SmarterMe Service” means the hosted solution provided by SmarterMe that permits User access to online content storage, sharing and processing.
“SmarterMe Software” means software that allows a User to use certain functionality in connection with certain features of the SmarterMe Service that is provided by SmarterMe either for installation on a Customer’s or a User’s device or that is otherwise accessed by Users from the Customer’s or User’s software, hardware or other devices.
“Content” means electronic data and information submitted by Customer to the SmarterMe Services or collected and processed by Customer using the SmarterMe Services “Customer Domain” means all email and/or web addresses registered, owned or controlled by Customer, its affiliates and/or agents and used by one or more Users to register an Account.
“Fee(s)” means the amounts payable to SmarterMe as specified in the applicable Order.
“Malware” means any software program or code intended to destroy, interfere with, corrupt, or cause undesired effects on program files, data or other information, executable code or application software macros.
“Order” means a SmarterMe quote order or other ordering document agreed to in writing by the Parties under this Agreement or by Customer which is accepted by SmarterMe.
“Subscription Period” means the time commencing on the Order Effective Date and continuing for the period specified in the applicable Order, or if no such period is specified, a 1 year period.
“Term” has the meaning set forth in Section 10.
“User(s)” means, collectively, any person who is permitted to access, store, retrieve or manage Content in any Account.
“User Guide” means SmarterMe’s, if any, then current published written or electronic documentation specifying the functionality of the SmarterMe Service and made generally available by SmarterMe to its customers or its users.
Section 2. Access and Use of the SmarterMe Service
2.1 Access Grant. Subject to Customer’s continued compliance with the obligations of this Agreement, including the timely payment of all applicable Fees, SmarterMe hereby grants Customer a non-exclusive, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the SmarterMe Services and SmarterMe Software and the right during the Term to allow Users to store, retrieve, and share Content through the SmarterMe Service in accordance with the User Guide, if any, solely through any Account registered to Customer or Users.
2.2 Service Plan Upgrade Option. During the Term, SmarterMe may from time to time provide Customer with the right to obtain access for additional Users, or features and functionality available in the next level of the SmarterMe Service plan i.e. from SmarterMe Business to SmarterMe Enterprise (“SmarterMe Service Plan Upgrade”) at pricing and terms to be mutually agreed upon by the Parties. Fees for such SmarterMe Service Plan Upgrade will be invoiced to Customer, prorated on an annual basis to be coterminous with the applicable Order.
2.3 Restrictions on Use of the SmarterMe Service. Customer agrees that it is solely responsible for the nature and content of all materials, works, data, statements, and other visual, graphical, video, written or audible communications of any nature submitted by any User or otherwise used through its Account. Customer agrees not to use or permit the use of the SmarterMe Service: (a) to communicate any message or material that is defamatory, harassing, libelous, threatening, or obscene; (b) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (c) in any manner that is likely to damage, disable, overburden, or impair the SmarterMe Service or interfere in any way with the use or enjoyment of the SmarterMe Service by others; (d) to introduce any Malware or other malicious activity in Customer’s or an User’s use of the SmarterMe Service; (e) in violation of any U.S. denied party-list, embargoed country restriction, export law or regulation; or (f) in any way that constitutes or encourages conduct that could constitute a criminal offense.
2.4 Suspension of Service. SmarterMe may at any time suspend any User’s use of the SmarterMe Service and/or remove or disable any Content as to which SmarterMe reasonably and in good faith believes is in violation of this Agreement. SmarterMe agrees to provide Customer with notice of any such suspension or disablement before its implementation unless such suspension or disablement is necessary to comply with legal process, regulation, order or prevent imminent harm to the SmarterMe Service or any third party, in which case SmarterMe will notify Customer to the extent allowed by applicable law of such suspension or disablement as soon as reasonably practicable thereafter.
2.5 Beta Services. From time to time, SmarterMe may invite Customer to try Beta Services at no charge. Customer may accept or decline any such trial at Customer’s sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. We may discontinue Beta Services at any time at SmarterMe’s sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
Section 3.Non-SmarterMe Applications and Services
SmarterMe makes third-party applications, which are separately licensed by their provider, available to Customer for use in connection with the SmarterMe Service (“Third-party Products”). SmarterMe makes no warranties of any kind and assumes no liability whatsoever for Customer’s use of such Third-party Products.
Section 4. Content Security; Data Privacy
4.1 Security. Without limiting Section7.4 (Disclaimer of Warranties) or Customer’s obligations under Section 5 or this Section 4, SmarterMe will implement commercially reasonable administrative, physical, and technical measures including disaster recovery procedures designed to secure the Content against accidental or unlawful loss, access or disclosure. A detailed version of our security policy is available at the following link: http://SmarterMe.co/privacy.html
Section 5. Customer Responsibilities
5.1 Content. Customer will: (a) be solely responsible for the nature, quality and accuracy of the Content; (b) ensure that the Content (including the storage or transmission thereof) complies with the this Agreement and any and all applicable laws, and regulations; (c) promptly handle and resolve any notices and claims relating to the Content; (d) promptly handle and resolve any notices sent to Customer by any person claiming that any Content violates any person’s rights, including take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (e) maintain appropriate security, and protection of the devices accessing the SmarterMe Service. SmarterMe has no liability to Customer or any third party for any reason as a result of (i) any unauthorized disclosure or access to Customer’s Account or Content as a result of Customer’s or a User’s misuse of the SmarterMe Service or loss or theft of any User password or username; or (ii) any deletion, destruction, damage or loss of Content caused by or at the direction of Customer or a
5.2 Notification of Unauthorized Use. Customer will immediately notify SmarterMe in writing of any unauthorized use of any Account, Content or the SmarterMe Service that comes to Customer’s attention. In the event of any such unauthorized use by any third party that obtained access to the SmarterMe Service directly or indirectly through Customer or through any User, Customer will take all steps necessary to terminate such unauthorized use and will provide SmarterMe with such cooperation and assistance related to any such unauthorized use as SmarterMe may reasonably request.
5.3 Account Registration. In order to access certain features of the Services, you must register to create an account (“Account”) and become a User. You may register directly via the Application. During the registration process, you will be required to provide certain information and you will establish a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. SmarterMe reserves the right to suspend or terminate your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions.
Section 6. Support and Service Level Commitments
6.1 Support Services. Subject to payment of the corresponding Fees, SmarterMe will provide the support services (“Support Services”) specified in the applicable Order and as further described in Exhibit A (Service Level Commitments and Support Services). Upon SmarterMe’s request, Customer will provide SmarterMe with remote access to Customer’s computer systems as reasonably required for SmarterMe solely to perform any Support Services and other obligations provided for under this Agreement, such as by VPN connection or other means.
6.2 Service Level Commitments. SmarterMe will use commercially reasonable efforts to meet the Service Level Commitments for the SmarterMe Service as specified on Exhibit A subject to the level subscribed to and paid for by the Customer under the applicable Order. The sole and exclusive remedy for any breach of any Service Level Commitment is set forth in Exhibit A, provided however that Customer may terminate this Agreement subject to the notice and cure provisions of Section 10.3 (Termination for Cause) in which case Customer will be entitled to a pro-rated refund of the Fees paid to SmarterMe for the remainder of the corresponding Subscription Period.
Section 7. Warranty and Disclaimer
7.1 SmarterMe Service Warranty. SmarterMe warrants that while the corresponding paid- for Subscription Period is in effect, that the SmarterMe Service will perform substantially in accordance with the functions specified in the User Guide under normal use and circumstances. Subject to the notice and cure provisions of Section 10.3 (Termination for Cause), Customer’s sole and exclusive remedy and SmarterMe’s entire liability for a breach of this warranty shall be for SmarterMe to use commercially reasonable efforts to modify the Service to substantially achieve in all respects the functionality described in the User Guide and if SmarterMe is unable to restore such functionality, Customer shall be entitled to terminate the applicable Order and receive a pro-rated refund of the subscription fees paid to SmarterMe for the corresponding remaining portion of the Subscription Period. The warranties set forth herein are made to and for the benefit of Customer only. SLC Credits due to Customer, if any, will be provided pursuant to the terms of Exhibit A.
7.2 Mutual Warranties. Each Party represents and warrants to the other that (a) this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and (c)the execution, delivery and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
7.3 Customer Warranties. Customer represents and warrants to SmarterMe that (a) Customer or its licensors own all right, title and interest in and to the Content; (b)Customer has all rights in the Content to grant the rights to SmarterMe contemplated by this Agreement; and (c) none of the Content will violate the terms of Section 2.3 (Restriction on the use of the SmarterMe Service).
7.4 Disclaimer of Warranties. EXCEPT AS PROVIDED IN THIS SECTION 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAKES ANY (AND EACH PARTY SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SmarterMe SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCH- ANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES. IN SUCH AN EVENT THE ABOVE EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY LAW.
Section 8. Proprietary Rights
8.1 Content Ownership by Customer. As between Customer and SmarterMe, Customer or its licensors own all right, title and interest in and to the Content. Customer hereby grants SmarterMe the right to transmit, use and disclose the Content solely to provide the SmarterMe Service to Customer or any User or to comply with any request of a governmental or regulatory body (including subpoenas or court orders), as otherwise required by law, or to respond to an emergency which SmarterMe believes in the good faith requires SmarterMe to disclose information to assist in preventing the death or serious bodily injury of any person.
8.2 Ownership of SmarterMe Service by SmarterMe. As between SmarterMe and Customer, SmarterMe or its licensors own and reserve all right, title and interest in and to the SmarterMe marks, the SmarterMe Service and all hardware, software and other items used to provide the SmarterMe Service, other than the access rights explicitly granted to Customer in Section 2.1. No title to or ownership of any proprietary rights related to the SmarterMe Service is transferred to Customer or any End User pursuant to this Agreement or any transaction contemplated by this Agreement. All rights not explicitly granted to Customer are reserved by SmarterMe. SmarterMe reserves the right, in its sole discretion, to change and/or require you to change your SmarterMe Service Account ID you may obtain through the SmarterMe Service. In the event that Customer makes suggestions, improvements or modifications to SmarterMe regarding any features, functionality or performance that SmarterMe adopts for any of its products including the SmarterMe Service or SmarterMe Software, such features, functionality or performance shall be deemed to be automatically assigned under this Agreement to, and shall become the sole and exclusive property of SmarterMe.
Section 9. Fees and Payment
9.1 Fees. Customer agrees to pay all Fees set forth on all Orders under this Agreement. In the event that the Parties mutually agree in writing to any extension of a Subscription Period or the provisioning of a SmarterMe Service Plan Upgrade, Customer will pay SmarterMe the then-current list price for such extension or SmarterMe Service Plan Upgrade, unless otherwise set forth in the applicable Order. Subject to any credits or refunds applicable to any Service Level Commitments hereunder, if any, all Fees are nonrefundable. All Fees and other amounts specified in this Agreement are payable in United States Dollars. After the Initial Term, SmarterMe may increase the Fees it charges for the SmarterMe Service. Any increase in the Fees will take effect at the beginning of Customer’s next Subscription Period, or at such later date as may be specified in the applicable Order.
9.2 Invoicing and Payment Terms. Unless otherwise specified in the applicable Order, Customer will pay all Fees within 30 days of the date of the applicable invoice issued by SmarterMe. In the event Customer disputes any invoiced Fees, Customer will provide written notice of the disputed amount within 30 days after receiving such invoice and timely pay any undisputed portion of such invoice. The Parties will cooperate in good faith to resolve any disputed invoice or portion thereof within 30 days of notice of dispute. All amounts payable by Customer under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. Customer will promptly reimburse SmarterMe for any cost or expense incurred in connection with any collection efforts undertaken by SmarterMe in connection with any past due amount owed under this Agreement. At SmarterMe’s discretion, past due amounts may accrue a late fee equal to the lesser of 1.5% per month, or the maximum amount allowed by applicable law.
9.3 Taxes. Fees are exclusive of Taxes and, Customer will promptly pay or reimburse SmarterMe for all Taxes arising out of this Agreement. For purposes of this Agreement, “Taxes” means any sales, use and other taxes (other than taxes on SmarterMe’s income), export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement that are imposed by any government or other authority. Customer hereby confirms that SmarterMe can rely on the ship-to name and address set forth in the Order(s) Customer places directly with SmarterMe as being the place of supply for sales tax purposes. If Customer is legally entitled to an exemption from the payment of any Taxes, Customer will promptly provide SmarterMe with legally sufficient tax exemption certificates for each taxing jurisdiction for which it claims exemption. Unless otherwise prohibited by law, SmarterMe will apply the benefits of any requested tax exemption to charges occurring under Customer’s Account after the date SmarterMe receives and reasonably processes such tax exemption certificates.
Section 10. Term and Termination
10.1 Term of Agreement. This Agreement will commence on the Agreement Effective Date and will remain in effect for the duration of the Subscription Period specified in the last remaining Order(s) (“Term”) or is otherwise terminated as provided for in Section 10.3 herein below. Each Order will be in effect for a period of 1 year from the Order Effective Date unless otherwise agreed in writing by the Parties or unless otherwise terminated in accordance with this Agreement.
10.2 Order Renewal. Unless the Agreement is terminated as provided for herein, the Order(s) under this Agreement will automatically renew for 1 year periods subject to payment of the corresponding Fees with either Party having the ability to provide the other Party with its intent not to renew the applicable Order(s) with at least 30 days written notice prior to the end of the then-current Subscription Period of such Order(s). For the avoidance of doubt, any discounts offered by SmarterMe to Customer during a prior Subscription Period will not apply during any new or renewal Subscription Period unless specifically agreed-to in writing by the Parties.
10.3 Termination for Cause. Either Party may terminate this Agreement for cause: (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured after the expiration of such period; or (b) if the other party becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding. Any failure by Customer to timely pay Fees owing hereunder or to comply with Sections 2, 4.1 or 5 will constitute a material breach of this Agreement.
10.4 Post-Termination Obligations. Upon termination or expiration of this Agreement for any reason, (a) Customer will have no further rights to the SmarterMe Service hereunder; (b)Customer will, within 5 days of such termination or expiration, destroy all copies of the SmarterMe Software, the User Guide, if any, and Confidential Information of SmarterMe, including any copies of the User Guide, if any, in written or electronic form and any SmarterMe Software stored on Customer’s servers or other systems; and (c) if requested by SmarterMe, Customer will promptly provide to SmarterMe a written certification signed by an authorized representative certifying that all copies of the SmarterMe Software, the User Guide, if any, and Confidential Information of SmarterMe have been destroyed. For 30 days following the expiration of the Termination of the Agreement and/or applicable Subscription Period, and subject to Customer’s prior written request, SmarterMe will grant Customer limited access to the SmarterMe Service solely for purposes of Customer’s retrieval of the Content. After such 30 day period, SmarterMe will have no obligation to maintain the Content and will delete the Content unless legally prohibited.
10.5 Surviving Provisions. Upon any expiration or termination of this Agreement, the following sections will survive: Sections 1, 2.3, 5.1, 7.4, 8, 9, 10.4, 11, 12, 13, and 14.
Section 11. Indemnification
11.1 Indemnification by SmarterMe. SmarterMe will defend Customer against any third party claim that the SmarterMe Service infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Customer’s actions) (“Claim Against Customer”), and will indemnify Customer for the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement. To the extent permitted by law, SmarterMe will have no liability to Customer under this Section
11.1 for any Claim Against Customer that arises out of: (a) any unauthorized use, reproduction, or distribution of the SmarterMe Service by Customer; (b) use of the SmarterMe Service in combination with any other software or equipment not supported in the User Guide; or (c) any modification or alteration of the SmarterMe Service by anyone other than SmarterMe without the written approval of SmarterMe. In the event of a Claim Against Customer pursuant to this Section 11.1, SmarterMe may (at SmarterMe’s option and expense): (i) obtain for Customer the right to continue using the SmarterMe Service; (ii) modify the SmarterMe Service to make it non-infringing; or (iii) if subsections (i) and (ii) are not commercially viable (as determined by SmarterMe in its sole discretion), terminate this Agreement and refund Customer on a pro-rated basis any Fees pre-paid to SmarterMe for the corresponding unused period of the SmarterMe Service.
11.2 Indemnification by Customer. Customer will defend SmarterMe against any third party claim: (i) that any Content, or Customer’s use of the SmarterMe Service in breach of this Agreement, infringes a registered patent, registered trademark, or copyright, or misappropriates a trade secret (to the extent that such infringement or misappropriation is not the result of SmarterMe’s actions); or (ii) relating to any Content or Customer’s use of the SmarterMe Service in violation of Section 2.3 (Restrictions on the Use of the SmarterMe Service). Customer will, with respect to any claim Against SmarterMe, indemnify SmarterMe for the resulting costs and damages finally awarded against SmarterMe to such third party by a court of competent jurisdiction or agreed to in settlement.
11.3 Indemnification Process. As a condition of receiving an indemnification under this Agreement, the party seeking indemnification hereunder (the “Indemnified Party”) will provide the other party (the “Indemnifying Party”) with (i) prompt written notice of the claim; (ii) complete control over the defense and settlement of the claim (provided, that the Indemnifying Party will not settle any claim without the Indemnified Party’s prior written permission, which will not be unreasonably withheld, delayed or conditioned, in the event the settlement fails to unconditionally release the Indemnified Party from all liability pertaining to such claim); and (iii) such assistance in connection with the defense and settlement of the claim, at the Indemnifying Party’s expense, as the Indemnifying Party may reasonably request.
11.4 Exclusive Remedy. This Section 11 states the Indemnified Party’s sole and exclusive remedy against, and the Indemnifying Party’s sole liability to, the other party for any type of claim under this Section 11. Notwithstanding the foregoing, SmarterMe will have the right to terminate Customer’s right to use the SmarterMe Service pursuant to Section 10.3.
Section 12. Limitation of Liability
12.1 Limitation of Liability. IN NO EVENT WILL SmarterMe’S TOTAL AND CUMULATIVE LIABILITY OR THAT OF ITS DISTRIBUTORS AND RESELLERS, FOR ALL CLAIMS OF ANY NATURE ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO SmarterMe FOR THE SPECIFIC USE OF THE SmarterMe SERVICE GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT FIRST GIVING RISE TO THE CLAIM UNDER THIS AGREEMENT. THE FOREGOING LIMITATION DOES NOT LIMIT OR EXCLUDE ANY LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE.
12.2 Disclaimer of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR THEIR DISTRIBUTORS AND RESELLERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF USE OR DATA) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
Section 13. Confidentiality
13.1 Definition. Either Party may disclose Confidential Information to the other Party during the Term of this Agreement. “Confidential Information” means all information disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) which is in tangible form and labeled “confidential” or the like, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. The following information will be considered Confidential Information whether or not marked or identified as such: (a) the SmarterMe Service; (b) Content; (c) the terms of this Agreement including all Orders and pricing thereto, and (d) the Disclosing Party’s strategic roadmaps, product plans, product designs and architecture, technology and technical information, security audit reviews, business and marketing plans, and business processes. Confidential Information other than Content, will not include information that as shown by the Receiving Party’s records was: (i) already known to Receiving Party at the time of disclosure by the Disclosing Party; (ii) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of the Receiving Party has become, generally available to the public; or (iv)was independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information.
13.2 Protection. The Receiving Party will use no less than a reasonable standard of care to safeguard the Confidential Information received from the Disclosing Party. The Receiving Party will only use the Confidential Information of the Disclosing Party: (a) to exercise its rights and perform its obligations under this Agreement; or (b) in connection with the Parties’ ongoing business relationship.
13.3 Permitted Disclosure. Neither Party will disclose Confidential Information in violation of the terms and conditions of this Agreement, to any third party, without the prior written consent of the other Party. Notwithstanding the foregoing each Party may disclose Confidential Information, including the terms and conditions of this Agreement, without the prior written consent of the other Party: (a) as compelled by law provided that to the extent legally permissible the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure and reasonable assistance, at the Disclosing Party’s expense, if the Disclosing Party seeks to contest such disclosure; (b) in confidence, to legal counsel, accountants, banks, and financing sources and their advisors; (c) in connection with the enforcement of this Agreement or rights under this Agreement; (d) the terms and conditions of this Agreement in confidence, in connection with an actual or proposed merger, acquisition, or similar transaction; or (e) or to respond to an emergency which SmarterMe believes in the good faith requires SmarterMe to disclose information to assist in preventing the death or serious bodily injury of any person.
Section 14. Miscellaneous
14.1 Contractual Relationship. The Parties are entering into this Agreement as independent contracting parties. Neither Party will have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. This Agreement will not be construed to create an association, joint venture or partnership between the Parties or to impose any partnership liability upon any Party.
14.2 Brand Marks Limitation. Any use of a party’s brand marks will inure to the benefit of the party holding Intellectual Property Rights in those brand marks. A party may revoke the other party’s right to use its brand marks pursuant to this Agreement with written notice to the other and a reasonable period to stop the use.
14.3 Notices. Any notice or other communication under this Agreement given by any Party to any other Party will be in writing and will be effective upon delivery as follows: (a) if to Customer, (i) when delivered via registered mail, return receipt requested, to the address specified in an Order; or (ii) when sent via email to the email address specified in an Order or otherwise on record for Customer; and (b) if to SmarterMe, when sent via email to support@SmarterMe.co, with a duplicate copy sent via registered mail, return receipt requested, to the following address: e-Zest Solutions, Inc., 1570 Woodward Ave, 2nd Floor, Detroit, MI 48226 U.S.A. Any such notice, in either case, must specifically reference that it is a notice given under this Agreement.
14.4 Nonwaiver. The failure of either Party to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.
14.5 Assignment. Customer will not, directly, indirectly, by operation of law or otherwise, assign all or any part of this Agreement or its rights hereunder or delegate performance of any of its duties hereunder without the prior written consent of SmarterMe. SmarterMe may assign this Agreement without obtaining Customer’s consent: (a) to an affiliate of SmarterMe; or (b) in connection with a successor in interest in a merger, reorganization or a sale of all or substantially all of the assets of SmarterMe. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
14.6 Integration; Order of Precedence. This Agreement, together with any Orders and the Exhibits, constitutes the entire agreement, and supersedes any and all prior agreements, between the Parties with regard to the subject matter hereof. This Agreement may not be amended or modified except by a writing signed by both Parties hereto. The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any Order, acknowledgement or confirmation or other document issued by Customer, unless the Parties mutually agree in writing that such terms and conditions shall modify, supersede and control in the event of any inconsistency with this Agreement.
14.7 Severability. In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision will be interpreted so as reasonably to effect the intent of the Parties. The Parties will promptly replace such void or unenforceable provision with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
14.8 Applicable Law; Dispute Resolution. This Agreement will be construed and enforced in all respects in accordance with the laws of the State of California, U.S.A., without reference to its choice of law rules. Any dispute, controversy or claim arising under, out of or relating to this Agreement, will be finally determined by arbitration conducted by the Judicial Arbiter Group (or, if unavailable, then such other similar group that can provide former judges as arbiters) in accordance with the Rules of Arbitration of the International Chamber of Commerce applicable to commercial disputes by a single arbiter who is (a) fluent in written and spoken English, the language governing this Agreement, and (b) skilled and experienced with cloud or internet services. The place of such arbitration will be in Redwood City, California, U.S.A. The judgment of the arbitrator will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the Parties, and may be entered in any court of competent jurisdiction. The foregoing does not limit or restrict either Party from seeking injunctive or other equitable relief from a court of competent jurisdiction.
14.9 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, internet service provider failures or delays, denial of service attacks, or other similar causes) the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party (a) provides the other Party with prompt notice of the nature and expected duration of the event, (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, (c) provides periodic notice of relevant developments, and (d) provides prompt notice of the end of such event.
EXHIBIT A SERVICE LEVEL COMMITMENTS AND SUPPORT SERVICES FOR SmarterMe PREMIUM
Commencing on the effective date of the applicable Subscription Period, SmarterMe will provide to Customer the Service Level Commitments and Support Services defined herein as specified in the applicable Order. In the event of a conflict between the terms of the Agreement and the terms of this Exhibit A, the terms of this Exhibit A shall prevail.
1. Exhibit Definitions
“Customer Core Group” means Customer’s employees who have been trained on the SmarterMe Service and who are familiar with Customer’s business practices. “Customer User Community” means all Customer’s Users. “Downtime” means any period during which the Customer in unable to access or use the SmarterMe Service because of an Issue, excluding Scheduled Downtime. “Issue” means a single, reproducible issue or problem materially or significantly affecting the functionality of the SmarterMe Service. “Scheduled Downtime” means a time period identified by SmarterMe not to exceed 4 hours per calendar quarter and subject to at least 24 hours’ prior notice wherever practical as provided to SmarterMe’s general customer base, in which SmarterMe intends to have any downtime of the SmarterMe Service or related systems. “SLC Credit” means the credit identified in Section 3 below, which may be offered to Customer in the event Customer reports an Uptime Percentage of less than 99.9% where Customer has paid SmarterMe for the applicable Account Licenses during the Subscription Period and has purchased Premiere Support. “Uptime Percentage” means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered in such calendar month, divided by the total number of minutes in such calendar month. “User Administration Support” means issues that impact the usability of the SmarterMe Service and are addressable through the adjustment of User access privileges, processes or procedures.
2. Scope of Service Level Commitments
SmarterMe’s obligations do not extend to Issues or errors caused by: a. Third party hardware or software; b. Use of the SmarterMe Service in violation of the terms of the Agreement; c. Use of the SmarterMe Service other than in accordance with any user Documentation or the reasonable instructions of SmarterMe; d. Ongoing test or training instances of the SmarterMe Service provided to Customer; or e. Services, circumstances or events beyond the reasonable control of SmarterMe, including, without limitation, any Force Majeure events, the performance and/or availability of local ISPs employed by Customer, or any network or service beyond the demarcation or control of SmarterMe.
3. Scheduled Downtime and Guaranteed Up Times
SmarterMe will use commercially reasonable efforts to provide at least 5 days prior notice before implementing any Scheduled Downtime. Subject to Customer’s purchase of Premier Support, SmarterMe will provide Customer with the SLC Credits identified below during the applicable Subscription Period upon Customer’s written request. The SLC Credit will be equal to the credit percentage identified in the table SLC Credits table below multiplied by the Customer’s fees paid to SmarterMe for the SmarterMe Service that are attributable to the corresponding month (calculated on a straight line pro-rated basis with respect to any fees paid in advance). Customer will submit a written SLC Credit request to SmarterMe within 15 days of such Downtime. The SLC Credit is Customer’s sole and exclusive remedy for any failure by SmarterMe to meet any support obligations as identified herein.
SLC Credits Table
|Uptime Percentage||SLC Credit Percentage|
|Less than 99.9% but more than 99.5%||10%|
|Less than 99.5% but more than 99.0%||20%|
|Less than 99.0%||50%|
4. Availability of SLC Credits
SLC Credits are only applicable to customer who subscribe to the Enterprise/Premium Plan or purchase additional support services. Customers who are past due on any payments owed to SmarterMe are not eligible to receive SLC Credits. SmarterMe will issue SLC Credits, as determined in its sole discretion, either on future billing cycles or as a refund against annual fees paid. In order to receive any SLC Credit, Customer must notify SmarterMe in writing within 15 days from the time Customer becomes eligible to receive a SLC Credit. Failure to comply with this requirement will forfeit Customer’s right to receive a SLC Credit. In no event will the total amount of SLC Credits if any, exceed the fees paid by Customer for the corresponding month.
5. Support Services
SmarterMe will provide support services to assist Customer in resolving Issues (“Support Services”). Support Services do not include (a) physical installation of the SmarterMe Software and any Documentation; (b) visits to Customer’s site; (c) any professional services (“Professional Services”) associated with the SmarterMe Service, including, without limitation, any custom development, data modeling, training and knowledge transfer; or (d) the set-up, configuration and use of the SmarterMe Service. SmarterMe’s performance of Professional Services if any, will be subject to the Parties’ execution of a Professional Services addendum (“PSO Addendum”) to this Agreement and payment of the applicable Fees. The Customer will ensure that the Customer User Community addresses all Issues through the Customer Core Group. The Customer Core Group will: a. b. c. d. e.
6. Response Times
SmarterMe will provide an acknowledgement of a reported Issue to Customer and respond within 3 business days. All support issues can be reported – email@example.com . The Response will include the priority assigned to the case, any actions taken, immediate resolution if available, and any escalation plans.
Resolution to an Issue is subject to verification and reproduction of the Issue by SmarterMe, with Customer’s reasonable assistance verifying and reproducing the Issue. Resolution(s) may include a temporary workaround, patch or bypass supplied by SmarterMe, or a computer or operating routine. Once SmarterMe has resolved an Issue, Customer will be required to test and accept the fix and/or work on data Issues if data has been impacted. Resolution to an Issue is subject to verification and reproduction of the Issue by SmarterMe, with Customer’s reasonable assistance verifying and reproducing the Issue. Resolution(s) may include a temporary workaround, patch or bypass supplied by SmarterMe, or a computer or operating routine. Once SmarterMe has resolved an Issue, Customer will be required to test and accept the fix and/or work on data Issues if data has been impacted.