Customer Terms and Conditions

These Customer Terms and Conditions (the “Terms”), together with all other terms, addenda and policies referenced in or attached to Customer’s Order Form referencing these Terms (collectively, the “Agreement”) govern Customer’s access to, and use of, the Subscription Service and all matters related thereto. This Agreement is between SmarterD, Inc., a Delaware corporation (“SmarterD”) and the customer (“Customer”) identified on the Order Form issued by SmarterD and becomes effective on the last signature, execution, or acceptance date of the Order Form (“Effective Date”). 

1. ORDERS. 

1.1 ORDERS. From time to time, Customer and SmarterD may complete ordering documents (“Order Forms”), through which Customer may order certain SmarterD offerings, as identified in the applicable Order Form (collectively, the “Subscription Service”). For the sake of clarity, Order Forms include, but are not limited to, automated online orders generated by SmarterD and accepted by Customer in the course of registering for the Subscription Service. 

1.2 PURCHASES FROM AUTHORIZED RESELLERS. Customer may purchase the Subscription Service through an authorized reseller (“Authorized Reseller”). If Customer chooses to purchase the Subscription Service through an Authorized Reseller, then: (a) all references to an Order Form are replaced with references to the “Use Authorization” (a document provided to Customer specifying the Subscription Service purchased by Customer and the term and scope of its authorized use); (b) this Agreement will apply to the Subscription Service ordered by Customer, except Section 1.3 (Payment), and (c) Customer is required to submit any warranty, indemnity, refund or service credit claims directly to the Authorized Reseller, who will be solely responsible for issuing any refunds or service credits. 

1.3 PAYMENT. Customer will pay all fees in accordance with each applicable Order Form.  

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2. SMARTERD RESPONSIBILITIES. 

2.1 PROVISION AND SUPPORT OF SUBSCRIPTION SERVICE. During the period set forth in the applicable Order Form (“Subscription Term”), SmarterD will provide: (1) the Subscription Service in accordance with this Agreement; (2) Customer Support Services as described in the System Availability and Support Addendum (“SASA”) at System Availability and Support Statement unless otherwise specified in an applicable addendum; and (3) provide the Subscription Service in compliance with all Laws applicable to SmarterD’s provision of the products and services. “Law” means any applicable law, rule, statute, decree, decision, order, regulation, judgment, code, and requirement of any government authority (federal, state, local, or international) with jurisdiction over SmarterD’s provision and Customer’s use of the Subscription Service under this Agreement. 

2.2 PROTECTION AND PROCESSING OF CUSTOMER DATA. During the Subscription Term, SmarterD will employ commercially reasonable physical, administrative, and technical safeguards to secure data and content that is uploaded by or for Customer or its agents, employees, or contractors, or otherwise submitted by Customer for processing in the Subscription Service (“Customer Data”). In the event of any unauthorized use or disclosure of Customer Data (each, a “Data Breach”), SmarterD shall notify Customer within twenty-four (24) hours of learning of the Data Breach, shall use its best efforts to remedy such Data Breach, and shall cooperate with Customer to remediate the situation. We understand that Customer Data may be subject to governmental regulation or otherwise may require security measures beyond those set forth herein. Unless we have first agreed in writing to provide such additional required security measures in an applicable Order Form, we shall have no obligation to do so or any liability in connection therewith. 

2.3 APPLICABILITY. The SASA, and any other addenda in effect as of the date of the Order Form apply to the Subscription Service specified on such Order Form. Furthermore, SmarterD may update the SASA and any addenda, and any update shall automatically apply to the Subscription Service provided under this Agreement. By continuing to access or use the Subscription Service after such updates become effective, Customer agrees to be bound by such updated terms. 

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3. ACCESS AND USE RIGHTS; RESTRICTIONS. 

3.1 ACCESS AND USE RIGHTS. Except as expressly provided otherwise in the applicable Order Form, SmarterD grants Customer a limited, personal, worldwide, non-sublicensable, non- transferable (except as set forth in Section 10.1 (Assignment)), non-exclusive license during the Subscription Term to access and use the Subscription Service solely for Customer’s internal business purposes in accordance with the applicable SmarterD published system requirements and technical functionality for such Subscription Service as described in the Documentation. “Documentation” means any manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Subscription Services, as provided or made available by SmarterD to you whether in a written or electronic form. If specified in the Order Form, Customer may provide its Affiliates access to the Subscription Service set forth in the Order Form (each such Affiliate an “Affiliate User”), provided that Customer will be wholly responsible for Affiliate Users’ compliance with this Agreement and all acts and omissions of such Affiliate Users. “Affiliate” means any person or entity directly or indirectly Controlling, Controlled by, or under common Control with a party, where “Control” means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause direction of the general management of a legal entity. For the sake of clarity, Customer’s “internal business purposes” shall also include and permit Customer’s use of the Subscription Service on a purely internal basis in the course of acting as a managed service provider and/or managed security service provider for Customer’s own clients (“Clients”), provided, that such Clients may not be provided with direct access to the Subscription Service, and that such Clients shall not be considered third party beneficiaries of this Agreement in any way. 

3.2 THIRD PARTY SERVICE PROVIDERS. Customer may permit third party suppliers of products and services (“Service Providers”) to access and use the Subscription Service for the limited purpose of providing services to Customer and supporting Customer’s operations provided that Customer will be wholly responsible for such Service Providers’ compliance with the terms of this Agreement and all acts or omissions in connection with the Service Providers’ use of the Subscription Service. 

3.3 ANCILLARY SOFTWARE. “Ancillary Software” means software licensed by SmarterD to Customer that is typically deployed on systems owned or controlled by Customer to facilitate Customer’s authorized access to and use of the Subscription Service in accordance with the Documentation. SmarterD grants Customer a non-exclusive, worldwide, non-sublicensable, non-transferable (except as expressly permitted in the Agreement), and limited license during the Subscription Term to install and execute Ancillary Software solely in connection with the use of the Subscription Service as permitted under this Agreement. 

3.4 RESTRICTIONS. With respect to the Subscription Service, Customer will not (and will not permit others to): (1) use it in excess of contractual use limits (including as stated in an Order Form), or in a manner that circumvents use limits or technological access control measures; (2) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share, or otherwise make it available for access by third-parties, except as may be otherwise expressly stated herein or in an Order Form; (3) access it for purposes of developing or operating competing products or services; (4) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Subscription Service; (5) copy, create derivative works based on, or otherwise modify the Subscription Service, except as may be otherwise expressly stated in this Agreement; (6) remove or modify a copyright or other proprietary rights notice in the Subscription Service; (7) use any Customer Technology or third-party intellectual property or technology in connection with the Subscription Service in contravention or absence of any necessary permissions, consents or use rights; (8) use the Subscription Service to reproduce, distribute, display, transmit, or use material protected by copyright or other IPR (including the rights of publicity) without first obtaining the owner’s permission; (9) use the Subscription Service to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or otherwise engage in a malicious act or disrupt its security, integrity, or operation; (10) engage in any activity that interferes with or disrupts the Subscription Service (or the servers and networks which are connected to the Subscription Service) or any SmarterD or third-party data, software, or network; or (11) use or allow it to be used in violation of Law. 

3.5 USE VERIFICATION. SmarterD may remotely review the scope of Customer’s use of the Subscription Service, and on SmarterD’s written request, Customer will provide reasonable assistance to verify Customer’s compliance with the Agreement with respect to access to and use of the Subscription Service. If SmarterD determines that Customer has exceeded its permitted access and use rights to the Subscription Service, SmarterD will notify Customer and Customer will, within 30 days, either: (1) disable any unpermitted use; or (2) purchase additional use rights commensurate with Customer’s actual use pursuant to a mutually executed Order Form. If Customer remains non-compliant after such 30 days, SmarterD may suspend Customer’s use of the Subscription Service or terminate this Agreement for breach, in addition to any other available rights and remedies. 

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4. INTELLECTUAL PROPERTY. 

4.1 SMARTERD OWNERSHIP. As between the parties, SmarterD and its licensors exclusively own all right, title, and interest in and to all intellectual property and proprietary rights (“IPR”) in the Subscription Service, Ancillary Software, Documentation, SmarterD websites, software, and technology and methodologies created by or for, or licensed to, SmarterD and any updates to, or derivative works of, the foregoing (“SmarterD Core Technology”), notwithstanding anything in this Agreement to the contrary. Except for the rights and licenses expressly granted in Section 3 (Access and Use Rights; Restrictions) and this Section 4, SmarterD, on behalf of itself and its licensors, reserves all rights in the SmarterD Core Technology. SmarterD Core Technology provided to Customer is licensed, not sold, even if words such as “sale” or “purchase” are used. 

4.2 CUSTOMER OWNERSHIP. Customer grants to SmarterD and its Affiliates and contractors a non-exclusive, worldwide, royalty-free, fully paid, non-sublicensable, and non-transferable license to use and reproduce Customer Data and Customer intellectual property and technology (“Customer Technology”) to provide and support the Subscription Service. As between the parties, Customer and its licensors will retain all right, title, and interest in and to all IPR in Customer Data and Customer Technology. If Customer provides SmarterD with feedback such as suggestions or ideas regarding the SmarterD Core Technology (“Feedback”), then SmarterD has the irrevocable right to exercise all rights in such Feedback without restriction. 

5. WARRANTIES; DISCLAIMERS. 

5.1 SMARTERD WARRANTIES. SmarterD warrants that, during the Subscription Term, the Subscription Service will materially conform to the features and functionality as described in the Documentation and will be provided in a competent and workmanlike manner, in accordance with accepted industry standards and practices. 

5.2 REMEDIES. If any material non-conformity to the features and functionality as described in the Documentation (excluding any non-conformity caused by a modification to the Subscription Service made by Customer or a third-party acting at Customer’s direction, or the Subscription Service not being properly used at all times in accordance with the Documentation), persists without relief more than 30 days after Customer’s notice to SmarterD of the non-conformity, then Customer may terminate the affected Subscription Service immediately upon written notice of termination, and as Customer’s exclusive remedy, SmarterD will refund to Customer any prepaid subscription fees covering the remainder of the applicable Subscription Term for the non-conforming Subscription Service after the date of termination. 

5.3 DISCLAIMER. Except for the warranties expressly stated in this Section 5 or any warranty expressly set forth in an addendum, to the maximum extent allowed by Law, each party disclaims all warranties of any kind (express, implied, statutory, or otherwise, oral or written), including the implied warranties of merchantability, accuracy, title, non-infringement, or fitness for a particular purpose, and any warranties arising from usage of trade, course of dealing, or course of performance. Without limiting the above, SmarterD does not warrant that the Subscription Service: (1) will meet the requirements of Customer or others; (2) will be accurate or operate without interruption or error; or (3) is designed for any purpose requiring fail-safe performance for which failure could result in death, personal injury or severe physical, property, or environmental damage. 

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6. CONFIDENTIALITY. 

6.1 DEFINITION. “Confidential Information” means information that (1) is non-public and related to a party’s technology or business; (2) due to the nature of the information or circumstances of disclosure, the receiving party should reasonably understand to be confidential; (3) Customer Data; or (4) this Agreement. The obligations of confidentiality do not apply to information that (a) is or becomes generally publicly known without fault or breach by receiving party, (b) the receiving party obtains (rightfully and without restriction on use or disclosure) from a third party entitled to make the disclosure, or (c) is independently developed by receiving party without using disclosing party’s Confidential Information. 

6.2 RIGHTS AND OBLIGATIONS. The recipient of Confidential Information will: (1) protect it from unauthorized disclosure with at least a reasonable degree of care; and (2) not use it except as necessary to exercise rights or fulfill obligations under this Agreement. Each party may disclose the Confidential Information to its Affiliates and employees, contractors, accountants, auditors and legal advisors, only on a need to know basis, who are bound to confidentiality terms consistent with those in this Agreement. On termination of this Agreement, the receiving party will, at the disclosing party’s request, return all originals, copies, reproductions, and summaries of Confidential Information, or at the disclosing party’s option, certify destruction of same. Notwithstanding the foregoing or anything to the contrary, SmarterD shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Subscription Service and related systems and technologies (including, without limitation, Customer  Data), and SmarterD will be free during and after the term hereof, to use such information and data for the following purposes: (i) to provide the Subscription Service; (ii) improve and enhance SmarterD’s services and products (including the development of new or related products and services), (iii) to maintain the integrity of the Subscription Service, (iv) for customer service or billing purposes, and (v) provided that such information or data is aggregated and anonymized in a manner that appropriately masks and disguises Customer’s Confidential Information, for other legitimate developmental, diagnostic, or business purposes. 

6.3 THIRD PARTY REQUESTS. This Agreement will not prevent the receiving party from disclosing the other party’s Confidential Information to a court or governmental body pursuant to a valid court order, Law, subpoena, or regulation, but only if the receiving party: (1) gives prompt notice (or the maximum notice permitted under Law) before making the disclosure, unless prohibited by Law; (2) reasonably assists the disclosing party, at the disclosing party’s cost, in its lawful efforts to resist or limit such disclosure; and (3) discloses only that portion of Confidential Information that is legally required to be disclosed. 

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7. DEFENSE OBLIGATIONS. 

7.1 BY SMARTERD. SmarterD will: (1) defend Customer and its Affiliates, and their officers, directors, and employees against any third-party suit, claim, action, or demand to the extent alleging the Subscription Service used by Customer in accordance with this Agreement directly infringes any IPR of any unaffiliated third party (“Claim”); and (2) pay any settlement amount or court-ordered damages finally awarded to the extent arising from such Claim. In connection with any Claim, SmarterD may: (a) obtain the permission of the third-party filing the Claim for Customer’s continued use of the applicable Subscription Service; (b) replace the applicable Subscription Service with a substantially functional equivalent; or (c) terminate Customer’s access to and use of the affected Subscription Service on reasonable notice and refund any prepaid fees covering that part of the applicable Subscription Term for the Subscription Service. 

7.2 LIMITATIONS. Notwithstanding the above, SmarterD has no obligation or liability for any Claim to the extent arising from: (1) any Subscription Service not expressly authorized to be used or accessed under this Agreement; (2) Customer Data or Customer Technology; (3) Customer’s or its users’ use of the Subscription Service (a) in violation of Law, or (b) after being informed by SmarterD to cease such use (after Customer is given a reasonable opportunity to cease use); or (4) modification to the Subscription Service to Customer’s specifications, or combination of the Subscription Service with anything not provided by SmarterD, if the Claim would have been avoided but for such modification or combination. 

7.3 BY CUSTOMER. Customer will: (1) defend SmarterD and its Affiliates, and their officers, directors, and employees against any Claim to the extent alleging that (a) SmarterD’s use and processing of Customer Data or Customer Technology (i) infringes any IPR, or (ii) violates any privacy rights or applicable Law, or (b) modification to any Subscription Service or other SmarterD technology made to Customer’s specifications or otherwise made by or on behalf of Customer (other than one made by or for SmarterD and only if the Claim would have been avoided by use of the unmodified SmarterD technology), infringes any IPR, or violates any privacy rights or applicable Law; and (2) pay any settlement amount or court-ordered damages finally awarded arising from such Claim. Notwithstanding the above, Customer has no obligation or liability for any Claim under subpart (1)(a)(ii) to the extent arising from SmarterD’s processing of Customer Data after being informed by Customer to cease such processing (after SmarterD is given a reasonable opportunity to cease processing). 

7.4 PROCESS. Each party’s duty to defend under Section 7, as applicable, is subject to the party with the Claim (“Claimant”): (1) notifying the party with the defense obligation (“Defending Party”) promptly of any actual or threatened Claim; (2) giving the Defending Party sole control of the defense of such Claim and of any related settlement negotiations; and (3) cooperating and, at the Defending Party’s reasonable request and expense, assisting in such defense. Neither party will stipulate, acknowledge, or admit fault or liability on the other’s part without the other’s prior, written consent. The Defending Party will not publicize any settlement without the Claimant’s prior, written consent. To the extent the parties perform as required, this Section 7 states each party’s entire liability and the other party’s exclusive remedy for third-party claims and third-party actions. 

8. LIMITATION OF LIABILITY. 

8.1 LIMITED LIABILITY. Each party’s total, cumulative liability related to this Agreement and the products and services provided under this Agreement will be limited to the amounts paid by Customer for use of the products or provision of the services giving rise to the claim during the 12-month period preceding the first event giving rise to liability or if no amounts have been paid, the amount payable for the same period. Multiple claims will not enlarge this limit. 

8.2 EXCLUDED DAMAGES. In no event will either party be liable for any incidental, indirect, consequential, punitive, special, or exemplary damages (including but not limited to lost profits, or loss of business or reputation), even if such party has been advised of such damages in advance or if such damages were foreseeable. 

8.3 APPLICABILITY. The foregoing does not apply to: (i) obligations to pay for the Subscription Service or taxes; (ii) infringement or misappropriation by a party of the other party’s IPR; or (iii) an action in tort, separate and distinct from a cause of action for breach of this Agreement, for a party’s gross negligence or willful misconduct. 

9. TERM AND TERMINATION. 

9.1 GENERALLY. This Agreement begins on the Effective Date and continues until terminated in accordance with its terms. Each party may terminate this Agreement in its entirety: (1) on 30 days’ prior notice to the other, if at the time of notice there are no Order Forms in effect; (2) immediately on notice by the party subject to a petition in bankruptcy or any proceeding related to its insolvency, receivership, or liquidation, in any jurisdiction, that such party is enforcing their right to reject this Agreement which is an executory contract; or (3) immediately on notice if the other party materially breaches this Agreement and does not cure such breach within 30 days after the other party’s receipt of notice of the breach. Either party may terminate an Order Form on notice if the other party materially breaches this Agreement or the applicable Order Form for the affected Subscription Service and does not cure the breach within 30 days after receiving notice of the breach. 

9.2 EFFECT OF TERMINATION. On termination of an Order Form or expiration of a Subscription Term, Customer will stop accessing and using the Subscription Service and all related rights granted to Customer in this Agreement terminate.  

9.3 SURVIVAL. Sections 3.2 (Restrictions), 4 (Intellectual Property), 5 (Warranties; Disclaimer) (solely in accordance with its terms), 6 (Confidentiality), 7 (Defense Obligations), 8 (Limitation of Liability), 9 (Term and Termination) (solely in accordance with its terms), and 10 (General Provisions), together with any other terms required for their construction or enforcement, will survive termination or expiration of this Agreement. 

10. GENERAL PROVISIONS. 

10.1 ASSIGNMENT. Neither party may assign or novate its rights or obligations under this Agreement without the other’s prior written consent, except (on written notice) in connection with a merger, reorganization, or sale of all or substantially all of either party’s assets or equity. Notwithstanding the foregoing, SmarterD may assign or novate this Agreement in its entirety to any SmarterD Affiliate. Subject to the foregoing, this Agreement binds and inures to the benefit of the parties, their respective successors, and permitted assigns. 

10.2 TRADE LAWS. The activities governed by this Agreement, including access to and usage of the Subscription Service, are subject to the U.S. Export Administration Regulations, the regulations of the U.S. Office of Foreign Assets Control, and may also be subject to similar laws of other jurisdictions (collectively, “Trade Laws”). Customer agrees to fully comply with the Trade Laws that apply to its activities governed by this Agreement, including prohibitions against usage by restricted persons, for certain end-uses, and in territories embargoed by then-current Trade Laws (as of the Effective Date, Cuba, Iran, Syria, North Korea, and the Ukrainian regions of Crimea, Luhansk, and Donetsk). Customer confirms that it is not restricted or sanctioned by applicable Trade Laws, including trade sanctions laws. 

10.3 U.S. GOVERNMENT RIGHTS. This Section 10.3 applies to the extent that the Subscription Service is used by or in support of the U.S. Government. The Subscription Service and Professional Services are commercial items, and any software therein is commercial computer software (per Federal Acquisition Regulation (“FAR”) 12.211 and 12.212 and Department of Defense FAR Supplement (“DFARS”) 227.7202, as applicable). Government Customers will have only those rights in technical data, computer software, and computer software documentation (collectively, “data”) set forth in these commercial terms of use, except that Department of Defense Customers may acquire additional rights in technical data pursuant to DFARS 252.227-7015(b). This provision applies in lieu of any FAR, DFARS, or other data rights clause or provision. 

10.4 NOTICE. All notices will be in writing and deemed given to the addresses set forth in the applicable Order Form, except that email will not be sufficient for notices regarding any legal claim. Addresses may be subsequently updated in writing in accordance with this Agreement. 

10.5 FORCE MAJEURE. Except for Customer’s payment obligations, neither party will be liable to the other if performance is prohibited or delayed by acts or events outside of the other party’s reasonable control. 

10.6 WAIVER; AMENDMENT. Failure by a party to enforce any part of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. If any term of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, it will be enforced to the maximum extent permissible, and it will be deemed amended or replaced with a term matching the intent of the original language as closely as possible. 

10.7 RELATIONSHIP. The parties are independent contractors, and nothing in this Agreement will be construed to create a partnership, joint venture, agency, or other relationship. 

10.8 LAW. The Agreement will be governed by the laws of California, without regard to its conflict of laws principles. Any disputes arising out of or related to this Agreement or any other aspect of the parties’ relationship under this Agreement will be heard only in a federal or state court in San Francisco, California. The parties irrevocably consent to the jurisdiction of, and venue in, such courts and waive any objection that such courts are an inconvenient forum. Notwithstanding the foregoing, either party to this Agreement may, at any time, and without waiving any other rights under this Agreement, seek appropriate legal or equitable relief in any court of competent jurisdiction to protect its Confidential Information, technology and IPR. 

10.9 CONSTRUCTION. URLs are understood to also refer to successor URLs, URLs for localized content, and information or resources linked from within the websites at such URLs. 

10.10 PUBLICITY.  During the Subscription Term, SmarterD may refer to Customer as a customer and user of the Subscription Service.  Solely in connection therewith, SmarterD may use Customer’s name and corporate logos.  Any goodwill arising from the use of such name and logos will inure solely to Customer’s benefit.  All other publicity regarding this Agreement and any Order Form will be mutually coordinated and approved by the parties. 

10.11 ENTIRETY; EXECUTION. This Agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous oral or written agreements between the parties with respect to that subject matter. This Agreement may be executed: (1) in multiple counterparts, all of which, taken together, will constitute one and the same instrument; and (2) by electronic means (e.g., PDFs, email, or electronic signature service). Except as otherwise expressly provided, any modification of this Agreement must be in writing and executed by authorized representatives of both parties. 

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