Hosted SmarterTrack Terms of Service

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY.

Welcome

As part of the Service, SmarterTools will provide You with use of the Service, including a browser interface and data encryption, transmission, access, and storage. Your registration for, or use of, the Service shall be deemed to be Your agreement to abide by this Agreement, including any materials available on the SmarterTools Web site referenced herein. This includes, but is not limited to, SmarterTools' privacy and security policies.

1. Definitions

As used in this Agreement and in any Order Forms now or hereafter associated herewith:

Agreement

These online terms of use, any Online Order Forms and any materials available on the SmarterTools Web site specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by SmarterTools from time to time in its sole discretion.

Content

The audio and visual information, documents, software, products, and services contained or made available to You in the course of using the Service.

Customer Data

Any data, information or material provided or submitted by You to the Service in the course of using the Service.

Effective Date

Either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date You begin using the Service, whichever is earlier.

Initial Term

The contract term, beginning on the contract start date and ending on the contract end date, specified on the applicable Order Form.

Intellectual Property Rights

Unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

License Administrator(s)

Those Users designated by You who are authorized to purchase licenses online using the Online Order Form and to create User accounts and otherwise administer Your use of the Service.

License Term(s)

The period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s).

Online Order Form(s)

The form evidencing the initial subscription for the Service and any subsequent order forms submitted online specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail).

Performance Benchmarks

Any aggregation, compilation or combination of Customer Data.

Service(s)

The specific edition of SmarterTools online customer service software, mail server software, Web log analytics tools, or other services identified during the ordering process, developed, operated, and maintained by SmarterTools, accessible via www.smartertools.com or another designated website or IP address, or ancillary online or offline products and services provided to You by SmarterTools, to which You are being granted access under this Agreement, including the SmarterTools Technology and the Content.

SmarterTools

Collectively SmarterTools Inc., an Arizona corporation, having its principal place of business at 1903 W. Parkside Lane, Suite 106, Phoenix, AZ 85027, or its assigns.

SmarterTools Technology

All of SmarterTools' proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to You by SmarterTools in providing the Service.

User(s)

Your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by You (or by SmarterTools at Your request).

2. Privacy Disclosure

SmarterTools' privacy policy may be viewed at www.smartertools.com or any other website that supports the Service. SmarterTools reserves the right to modify its privacy policy from time to time.

3. License Grant and Restrictions

SmarterTools hereby grants You a non-exclusive, non-transferable, worldwide right to use the Service solely for Your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to You are reserved by SmarterTools.

You shall not license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Service or the Content in any way; modify or make derivative works based upon the Service or the Content; create Internet links to the Service or frame or mirror any Content on any other server, wireless, or Internet-based device; or reverse engineer or access the Service in order to build a competitive product or service, build a product using similar ideas, features, functions, or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.

You may use the Service only for Your internal business purposes and shall not: send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third-party privacy rights; send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; interfere with or disrupt the integrity or performance of the Service or the data contained therein; or attempt to gain unauthorized access to the Service or its related systems or networks.

As a condition to using the Service, You may be required to register and select a site name and account password. You may not select or use as a site name of another person or company with the intent to impersonate that person or company or use a name that You do not have permission to use. SmarterTools reserves the right to refuse registration of or cancel a site name in its discretion.

You may not access the Service if You are a direct competitor of SmarterTools, except with SmarterTools' prior written consent. In addition, You may not access the Service for the purposes of monitoring its availability, performance, or functionality, or for any other benchmarking or competitive purposes.

4. Your Responsibilities

You are responsible for all activity occurring under Your User accounts and shall abide by all applicable local, state, national, and foreign laws, treaties, and regulations in connection Your use of the Service, including those related to data privacy, international communications, and the transmission of technical or personal data. You shall notify SmarterTools immediately of any unauthorized use of any password or account or any other known or suspected breach of security. You shall report to SmarterTools immediately and use reasonable efforts to stop immediately any copying or distribution of content that is known or suspected by You or Your Users. You shall not impersonate another SmarterTools user or provide false identity information to gain access to or use the Service.

5. Account Information and Data

SmarterTools does not own any data, information, or material that You submit to the Service in the course of using the Service ("Customer Data"). You, not SmarterTools, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right of use to all Customer Data, and SmarterTools shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any Customer Data.

You recognize that SmarterTools is located in the United States, that all associated data and data processing occurs on SmarterTools controlled and maintained devices located in the United States; therefore SmarterTools is subject to the laws restrictions and governing jurisdiction of the United States with regard to data protection and privacy as specified herein.

In the event this Agreement is terminated (other than by reason of Your breach), SmarterTools will allow You to request Your Customer Data within 14 days of termination. SmarterTools reserves the right to withhold, remove, and/or discard Customer Data without notice for any breach including without limitation, Your non-payment. Upon termination for cause, Your right to access or use Customer Data immediately ceases, and SmarterTools shall have no obligation to maintain or forward any Customer Data.

6. Intellectual Property Ownership

SmarterTools alone shall own all right, title, and interest, including all related Intellectual Property Rights, in and to SmarterTools Technology, Content, and Service, as well as any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by You or any other party relating to the Service. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service, SmarterTools Technology, or the Intellectual Property Rights owned by SmarterTools. The SmarterTools name, SmarterTools logo, and product names associated with the Service are trademarks of SmarterTools or third parties, and no right or license is granted to use them.

7. Third-Party Interactions

During use of the Service, You may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, is solely between You and the applicable third party. SmarterTools shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between You and any such third-party. SmarterTools does not endorse any sites on the Internet that are linked through the Service. SmarterTools provides these links to You only as a matter of convenience, and in no event shall SmarterTools or its licensors be responsible for any content, products, or other materials on or available from such sites. SmarterTools provides the Service to You pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware, or services may require Your agreement to additional or different license or other terms prior to Your use of or access to such software, hardware, or services.

8. Charges and Payment of Fees

You shall pay all fees or charges to Your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments shall be made in accordance with the terms and conditions set forth by SmarterTools, an Online Order Form, or as otherwise mutually agreed upon. All payment obligations are non-cancellable and all amounts paid are nonrefundable. You are responsible for paying for all User licenses ordered, whether or not such User licenses are used. An authorized License Administrator may add or reduce licenses by executing an additional Online Order Form. License modifications will be subject to the following terms: added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); the license fee for the additional licenses will be the then-current, generally applicable license fee; and licenses added or reduced in the middle of a billing month will be pro-rated for that billing month. SmarterTools reserves the right to modify its fees and charges and to introduce new charges at any time upon prior notice to You via email, news item, or any other means. All pricing terms are confidential, and You agree not to disclose them to any third party.

9. Allowances

If at any time SmarterTools determines that You are abusing resources through Your use of the Service, SmarterTools, at its sole discretion, may terminate this Agreement and Your access to the Service without notice.

10. Billing and Renewal

SmarterTools charges and collects in advance for use of the Service. In the event You are subscribing to the Service via an authorized SmarterTools partner, billing and payment processing may be managed by the authorized partner. SmarterTools or its authorized partner will automatically renew and bill Your credit card or issue an invoice to You every month for monthly licenses, and You agree to pay such amounts when and as specified in the Online Order Form. Fees for other services will be charged on an as-quoted basis.

You agree to pay SmarterTools in U.S. dollars. SmarterTools' fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties, excluding only U.S. taxes (federal or state) based solely on SmarterTools' income.

You agree to provide SmarterTools with complete and accurate billing and contact information. This information includes, but is not limited to, Your legal company name, address, email, and the name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 10 days of any change to it. If the contact information You have provided is false or fraudulent, SmarterTools reserves the right to terminate Your access to the Service in addition to any other legal remedies.

If You believe Your bill is incorrect, You must contact SmarterTools in writing within 14 days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. If You have subscribed for the Service via an authorized SmarterTools partner and believe Your bill is incorrect, You must contact the authorized partner directly and are subject to their terms and conditions for bill corrections and/or refunds.

11. Non-payment and Suspension

In addition to any other rights granted to SmarterTools herein, SmarterTools reserves the right to suspend or terminate this Agreement and Your access to the Service if Your account becomes delinquent or falls into arrears. Any amounts owed that are not paid in full when due are subject to interest of 1.5% per month, or the maximum permitted by law, whichever is less, plus all the expenses of collection. You will continue to be charged for User licenses during any period of suspension. If You or SmarterTools initiate termination of this Agreement, You agree to promptly pay the balance due on Your account computed in accordance with the Charges and Fees section above. You agree that SmarterTools may charge such unpaid fees to Your credit card or otherwise bill You for such unpaid fees.

SmarterTools reserves the right to impose a reconnection fee in the event You are suspended and thereafter request access to the Service. You agree and acknowledge that SmarterTools has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Your account is 10 days or more delinquent.

12. Termination

This Agreement commences on the Effective Date as designated on the Online Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms at SmarterTools then-current fees. Either party may terminate this Agreement or reduce the number of licenses at any time, by notifying the other party in writing in the event this Agreement is terminated (other than by reason of Your breach), SmarterTools will allow You to request Your Customer Data within 14 days of termination. You agree and acknowledge that SmarterTools has no obligation to retain the Customer Data and may delete such Customer Data saved on SmarterTools' servers more than 14 days after termination.

13. Termination for Cause

Any breach of Your payment obligation or unauthorized use of SmarterTools Technology or Service will be deemed a material breach of this Agreement. SmarterTools, in its sole discretion, may terminate Your password, account, or use of the Service if You breach or otherwise fail to comply with this Agreement. You agree and acknowledge that SmarterTools has no obligation to retain the Customer Data and may delete such Customer Data if You have materially breached this Agreement for any reason, including, but not limited to, failure to pay outstanding fees, and such breach has not been resolved within 10 days of notice of such breach.

14. Representations and Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. SmarterTools represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online SmarterTools help documentation under normal use and circumstances. You represent and warrant that You have not falsely identified Yourself nor provided any false information to gain access to the Service and that Your billing information is correct.

15. Mutual Idemnification

You shall indemnify and hold SmarterTools, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; a claim, which if true, would constitute a violation by You of Your representations and warranties; or a claim arising from the breach by You or Your Users of this Agreement, provided in any such case that SmarterTools gives written notice of the claim promptly to You; gives You sole control of the defense and settlement of the claim (provided that You may not settle or defend any claim unless You unconditionally release SmarterTools of all liability and such settlement does not affect SmarterTools' business or Service); provides to You all available information and assistance; and has not compromised or settled such claim.

16. Disclaimer of Warranties

SmarterTools makes no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy, or completeness of the Service or any content. SmarterTools does not represent or warrant that the use of the Service will be secure, timely, uninterrupted, or error-free or operate in combination with any other hardware, software, system, or data; the service will meet Your requirements or expectations; any stored data will be accurate or reliable; the quality of any products, services, information, or other material purchased or obtained by You through the service will meet Your requirements or expectations; errors or defects will be corrected; or the service or the server(s) that make the Service available are free of viruses or other harmful components. The Service and all content are provided to You strictly on an "as is" basis. All conditions, representations and warranties, whether express, implied, statutory, or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third-party rights, are hereby disclaimed to the maximum extent permitted by applicable law by SmarterTools.

17. Internet Delays

SmarterTools' Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. SmarterTools is not responsible for any delays, delivery failures, or other damage resulting from such problems.

18. Limitation of Liability

In no event shall either party's aggregate liability exceed the amounts actually paid by and/or due from You in the 12- month period immediately preceding the event giving rise to such claim. In no event shall either party and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential, or other damages of any type or kind (including, but not limited to, loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with this Service, including but not limited to the use or inability to use the service, or for any content obtained from or through the Service, any interruption, inaccuracy, error or omission, regardless of cause in the content, even if the party from which damages are being sought or such party's licensors have been previously advised of the possibility of such damages.

19. Notice

SmarterTools may give notice by means of a general notice on the Service or electronic mail to Your email address on record in SmarterTools' account information. Such notice shall be deemed to have been given upon the expiration of 24 hours after posting (if sent via a general notice on the Service) or 12 hours after sending (if sent by email).

20. Modification to Terms

SmarterTools reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Your consent to such changes.

21. Assignment/Change in Control

This Agreement may not be assigned by You without the prior written approval of SmarterTools but may be assigned without Your consent by SmarterTools to a parent or subsidiary, an acquirer of assets, or a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of You that results or would result in a direct competitor of SmarterTools directly or indirectly owning or controlling 50% or more of You shall entitle SmarterTools to terminate this Agreement for cause immediately upon written notice.

22. Local Laws and Export Control

The use of this Site and Site materials (e.g. software and content hosted on the Site) contained thereon may be to subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. You acknowledge and agree that the Site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, You represent and warrant that You are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

SmarterTools makes no representation that the Service is appropriate or available for use in other locations. If You use the Service from outside the United States, You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government for such purposes.

23. Miscellaneous

This Agreement shall be governed by the laws of the State of Arizona and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Maricopa County, Arizona. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between You and Artifact as a result of this agreement or use of the Service. The failure of SmarterTools to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. This Agreement, together with any applicable Order Form, comprises the entire agreement between You and SmarterTools and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

If You have questions regarding the Agreement or wish to obtain additional information, please send an email to: sales@smartertools.com