Smartwhere Terms and Conditions

Smartwhere Service Agreement

THIS USER AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF THE SMARTWHERE SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING TO ACCEPT IT OR BY USING THE SMARTWHERE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND THE SMARTWHERE PRIVACY POLICY. IF YOU ARE BETWEEN THE AGES OF 13 AND 17, YOU REPRESENT THAT YOUR LEGAL GUARDIAN HAS REVIEWED AND AGREED TO THESE TERMS. 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 AND THE SMARTWHERE PRIVACY POLICY, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SMARTWHERE SERVICES.

You may not create an account or access the Smartwhere Services if You are Our direct competitor, except with Our prior written consent, or if you are under the age of 13. In addition, You may not access the Smartwhere Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on October 2nd, 2015. It is effective between You and Us as of the date of You accepting this Agreement. We reserve the right to modify this User Agreement at any time, and without prior notice, by posting amended terms on this website. Your continued use of the Smartwhere Services or Free Smartwhere Services indicates your acceptance of the amended User Agreement.


1. DEFINITIONS

“Smartwhere Services” means the Smartwhere services that are made available by Us online via the Smartwhere customer login page and/or other web pages designated by Us, including associated offline components.

“Free Smartwhere Services” means Smartwhere Services that We provide to You at no charge.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Non-Smartwhere Applications” means online applications and offline software products that are provided by entities or individuals other than Us and are clearly identified as such, and that interoperate with the Smartwhere Services.

“Paid Smartwhere Services” means Smartwhere Services that We provide to You for a fee.

“Users” means individuals who are authorized by You to use the Smartwhere Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business. Users may not be under the age of 13. If You have Users between the ages of 13 and 17, You represent that the legal guardian of such Users has reviewed and agreed to these terms.

“We,” “Us” or “Our” means Smartwhere llc, a Washington corporation with offices at 81 Vine St. #302, Seattle, Washington 98121, United States of America.

“You” or “Your” means you as an individual, or if you are accepting this Agreement for a company or other legal entity, that company or legal entity.

“Your Content” means all electronic data or information submitted by You to the Smartwhere Services.


2. SMARTWHERE SERVICES

2.1. Provision of Smartwhere Services. We shall make the Smartwhere Services available to You pursuant to this Agreement. You agree that Your purchases of Paid Smartwhere Services hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

2.2. User Subscriptions for Paid Smartwhere Services. Unless otherwise specified, Paid Smartwhere Services are acquired as User subscriptions and may be accessed by no more than the specified number of Users. User subscriptions for Paid Smartwhere Services are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Smartwhere Services.


3. USE OF THE SMARTWHERE SERVICE

3.1. Our Responsibilities. We will use commercially reasonable efforts to provide online support for the Purchased Smartwhere Services to You at no additional charge, and to make the Purchased Smartwhere Services available 24 hours a day, 7 days a week, except for routine maintenance and any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks.

3.2. Our Protection of Your Content. We will use commercially reasonable efforts to protect the security, confidentiality and integrity of Your Content submitted to the Paid Smartwhere Services.

3.3. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Content and of the means by which You acquired Your Content, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Smartwhere Services, and notify Us promptly of any such unauthorized access or use and (iv) monitor Users’ accounts to restrict use by minors, and you will deny access to children under the age of 13. You accept full responsibility for any unauthorized use of the Smartwhere Services by minors in connection with Your account or Your Users’ accounts. You shall not (a) make the Smartwhere Services available to anyone other than Users, (b) sell, resell, rent or lease the Smartwhere Services, (c) use the Smartwhere Services to store or transmit material in violation of third-party privacy rights, (d) use the Smartwhere Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Smartwhere Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Smartwhere Services or their related systems or networks, or (g) use manual or automated software, devices, or other processes to “crawl” or “spider” any web pages contained in the Smartwhere Services. You shall not use the Smartwhere Services for any of the following: (1) to post content or initiate communications which are unlawful, libelous, abusive, obscene, discriminatory, or otherwise objectionable, (2) for any illegal purpose, including but not limited to conspiring to violate laws, (3) to falsely state, impersonate, or otherwise misrepresent your identity, including but not limited to the use of a pseudonym, or misrepresenting your current or previous positions and qualifications, or your affiliations with a person or entity, past or present, (4) to upload, post, email, transmit or otherwise make available any content or initiate communications which include information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships (such as insider information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), (5) to upload, post, email, transmit or otherwise make available any content or initiate communication that infringes or misappropriates any patent, trademark, trade secret, copyright or other proprietary right, (6) to upload third-party content that infringes or violates any license, permission, consent or agreement necessary for the lawful use of such third party content, (7) to upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional material, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation (this prohibition includes but is not limited to (a) using Smartwhere Service invitations to send messages to people who don’t know you or who are unlikely to recognize you as a known contact, (b) using the Smartwhere Services to connect to people who don’t know you and then sending unsolicited promotional messages to those direct connections without their permission, and (c) sending messages to distribution lists, newsgroup aliases, or group aliases), (8) to stalk or harass anyone, (9) to forge headers or otherwise manipulate identifiers in order to disguise the origin of any communication transmitted through the Smartwhere Services, (10) to post content in fields that aren’t intended for that content (for example, putting an address in a name or title field), or (11) disobey any requirements, procedures, policies or regulations of networks connected to the Smartwhere Services Service.

3.4 Responsibility for User Content, Identities and Profile Information. All content posted on or transmitted through the Smartwhere Services is the sole responsibility of the person who posted or transmitted such content. We shall have no liability for any errors or omissions in any content. We cannot guarantee the identity of any users with whom You may interact in using the Smartwhere Services, or the authenticity of any profile or other information that users may provide about themselves or relationships they may describe.

3.5 Removal of User Content. We may require Your removal, and/or remove ourselves, any content entered by You to the Smartwhere Service in violation of this Agreement.

3.6 Usage Limitations. Smartwhere Services may be subject to other limitations, such as, for example, limits on disk storage space and on the number of calls You are permitted to make against Our application programming interface.

3.7 Content Entered in to the Smartwhere Service. In the course of using the Smartwhere Service, users may provide information about themselves and their company which may be visible to certain other users (see the Smartwhere Privacy Policy to learn more about information collected on Smartwhere). You understand that by posting Your Content on the Smartwhere website or otherwise providing materials to Us, you are granting to Us a royalty-free, perpetual, irrevocable license to use this information in the course of offering the Smartwhere Service. Furthermore, you understand that We retain the right to reformat, excerpt, or translate Your Content or any materials submitted by You. In addition, You agree that Smartwhere may share Your Content (including Content from integrated Non-Smartwhere Applications) with others to whom you have granted access within the Smartwhere Services and understand that You control the ability to provide or revoke such access to any of Your Content. Upon Your request, following contract termination and subject to applicable legal requirements, Smartwhere will use commercially reasonable efforts to delete Your Content from the Smartwhere Services to the extent You do not have the ability to do so via Your Use of the Smartwhere Services.

3.8 API Terms. Any use of the Application Program Interface (“API”), including use of the API through a third-party product that accesses Smartwhere, is bound by this Agreement plus the following specific terms: You shall not abuse or make excessive requests to Smartwhere via the API. You also agree and understand that Your use of Non-Smartwhere Applications within the Smartwhere Services shall not violate any Non-Smartwhere Application API terms and conditions. Any violation may result in the temporary or permanent suspension of Your access to the API. Smartwhere, in its sole discretion, will determine abuse or excessive usage of the API. Smartwhere reserves the right at any time to modify or discontinue, temporarily or permanently the API (or any part thereof) with or without notice.


4. NON-SMARTWHERE PROVIDERS

4.1. Acquisition of Non-Smartwhere Applications. We or third parties may from time to time make Non-Smartwhere Applications available to You. Any acquisition by You of such Non-Smartwhere Applications, and any exchange of data between You and any provider of a Non-Smartwhere Application, is solely between You and the applicable third-party provider. We do not warrant or support Non-Smartwhere Applications, whether or not they are designated by Us as “certified” or otherwise. Subject to Section 4.3 (Integration with Non- Smartwhere Services), no purchase of Non-Smartwhere Applications is required to use the Smartwhere Services.

4.2. Non-Smartwhere Applications and Your Content. If You install or enable Non-Smartwhere Applications for use with Smartwhere Services, You acknowledge that We may allow providers of those Non-Smartwhere Applications to access Your Content as required for the interoperation of such Non-Smartwhere Applications with the Smartwhere Services. We shall not be responsible for any disclosure, modification or deletion of Your Content resulting from any such access by Non-Smartwhere Application providers.

4.3. Integration with Non-Smartwhere Services. The Smartwhere Services may contain features designed to interoperate with Non-Smartwhere Applications. To use such features, You may be required to obtain access to such Non-Smartwhere Applications from their providers. If the provider of any such Non-Smartwhere Application ceases to make the Non-Smartwhere Application available for interoperation with the corresponding Smartwhere Service features on reasonable terms, We may cease providing such Smartwhere Service features without entitling You to any refund, credit, or other compensation.


5. FEES AND PAYMENT FOR PAID SMARTWHERE SERVICES

5.1. Fees. You shall pay all fees for Your purchases of Paid Smartwhere Services. Except as otherwise specified herein, (i) fees are based on services purchased whether or not the services are actually used, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) Paid Smartwhere Service User subscriptions cannot be cancelled or terminated during the relevant subscription term.

5.2. Invoicing and Payment. You will provide Us with valid and updated credit card information. You authorize Us to charge Your credit card for all Paid Smartwhere Services for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.2 (Term of Paid Smartwhere User Subscriptions). Such charges shall be made in advance.

5.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).

5.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 10 or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Smartwhere Services to You until such amounts are paid in full. We will give You at least 7 days’ prior notice that Your account is overdue before suspending services to You.

5.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.


6. PROPRIETARY RIGHTS

6.1. Reservation of Rights in Smartwhere Services. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Smartwhere Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

6.2. Restrictions. You shall not (i) permit any third party to access the Smartwhere Services except as permitted herein, (ii) create derivate works based on the Smartwhere Services except as authorized herein, (iii) copy, frame or mirror any part or content of the Smartwhere Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Smartwhere Services, or (v) access the Smartwhere Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Smartwhere Services.

6.3. Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Smartwhere Services, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Smartwhere Services in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein.

6.4. Your Content. You authorize Us to host, copy, transmit, display, modify and adapt Your Content, solely as necessary for Us to provide the Smartwhere Services in accordance with this Agreement. Subject to the limited rights granted by You hereunder, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Content, including any intellectual property rights therein.

6.5. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Smartwhere Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Smartwhere Services.

6.6. Federal Government End Use Provisions. We provide the Smartwhere Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Smartwhere Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 226.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.


7. CONFIDENTIALITY

7.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Content; Our Confidential Information shall include the Smartwhere Services, and business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by Us. However, Confidential Information (other than Your Content) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

7.2. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.


8. WARRANTIES AND DISCLAIMERS

8.1. Our Warranties. We warrant that (i) We have validly entered into this Agreement and have the legal power to do so, and (ii) We will not transmit Malicious Code to You through the Paid Smartwhere Services, provided it is not a breach of this subpart (iii) if You or a User uploads a file containing Malicious Code into the Smartwhere Services and later downloads that file containing Malicious Code. For any breach of a warranty above, Your exclusive remedy shall be as provided in Section 11.3 (Termination) below.

8.2. Your Warranties. You warrant that You have validly entered into this Agreement and have the legal power to do so.

8.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE FREE SMARTWHERE SERVICES ARE PROVIDED “AS IS,” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY WHATSOEVER.

8.4. Non-GA Services. From time to time We may invite You to try, at no charge, Our products or services that are not generally available to Our customers (“Non-GA Services”). You may accept or decline any such trial in Your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-GA Services at any time in Our sole discretion and may never make them generally available.


9. MUTUAL INDEMNIFICATION

9.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding made or brought against You by a third party alleging that the use of the Paid Smartwhere Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (a “Claim Against You”), and shall indemnify You for any damages, attorney fees and costs finally awarded against You as a result of, and for amounts paid by You under a court-approved settlement of, a Claim Against You; provided that You (a) promptly give Us written notice of the Claim Against You; (b) give Us sole control of the defense and settlement of the Claim Against You (provided that We may not settle any Claim Against You unless the settlement unconditionally releases You of all liability); and (c) provide to Us all reasonable assistance, at Our expense. In the event of a Claim Against You, or if We reasonably believe the Paid Smartwhere Services may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Paid Smartwhere Services so that they no longer infringe or misappropriate, without breaching Our warranties under “Our Warranties” above, (ii) obtain a license for Your continued use of the Paid Smartwhere Services in accordance with this Agreement, or (iii) terminate Your User subscriptions for such Paid Smartwhere Services upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User subscriptions after the effective date of termination.

9.2. Indemnification by You. You shall defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that Your Content, or Your use of the Smartwhere Services breaches this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law (a “Claim Against Us”), and shall indemnify Us for any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us; provided that We (a) promptly give You written notice of the Claim Against Us; (b) give You sole control of the defense and settlement of the Claim Against Us (provided that You may not settle any Claim Against Us unless the settlement unconditionally releases Us of all liability); and (c) provide to You all reasonable assistance, at Your expense.

9.3. Exclusive Remedy. This Section 9 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section


10. LIMITATION OF LIABILITY

10.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE LESSER OF $500,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER, AND PROVIDE FURTHER THAT WE SHALL HAVE NO LIABLITY WHATSOEVER IN CONNECTION WITH THE FREE SMARTWHERE SERVICES. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PAID SMARTWHERE SERVICES).

10.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.


11. TERM AND TERMINATION

11.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Free Smartwhere Services, this Agreement will terminate in accordance with Section 11.3 (Termination) below.

11.2. Term of Paid Smartwhere Service Subscriptions. Paid Smartwhere Service subscriptions purchased by You commence on the purchase date and continue for the specified subscription term. Except as otherwise specified, all subscriptions shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other notice of non-renewal before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.

11.3. Termination. Either party may terminate Free Smartwhere Services at any time without cause immediately upon notice to the other party. A party may terminate Paid Smartwhere Service subscriptions for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

11.4. Surviving Provisions. Section 5 (Fees and Payment for Paid Smartwhere Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), and 12 (General Provisions) shall survive any termination or expiration of this Agreement.


12. GENERAL PROVISIONS

12.1. Governing Law and Jurisdiction. This agreement will be governed by and construed in accordance with the laws of Washington State, excluding its principles of conflicts of law.  The venue and exclusive jurisdiction for any litigation will be in Seattle, Washington.

12.2. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

12.3. Export Compliance. The Smartwhere Services, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use Smartwhere Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.

12.4. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department (legalcompliance@smartwhere.com).

12.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

12.6 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email. Notices to You shall be addressed to the relevant contact designated by You. Notices to Us shall be addressed to the President at Smartwhere, 81 Vine St #302, Seattle, Washington 98121, United States of America.

12.7. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

12.8. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

12.9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

12.10. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 5.2 (Invoicing and Payment).

12.11. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.13. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.


 

Smartwhere SDK Agreement

This Smartwhere SDK Agreement (“Agreement”) is between the individual or entity (“you” or “Developer”) that accepts it, and Smartwhere, LLC. (“Smartwhere”). You accept this Agreement by using or accessing the SDK or any part of the SDK. Your agreement to these terms also binds your authorized users, your company or organization.


1. Development License

1.1. Development License. Conditioned upon compliance with the terms and conditions of this Agreement, Smartwhere hereby grants you a limited, non-exclusive, personal, revocable, non-sublicensable and non-transferable license to: (a) install and use a reasonable number of copies of the SDK on computers owned or controlled by you for the purpose of developing and testing applications that are intended for use solely in connection with Smartwhere Software (“Application”); and (b) modify and incorporate into your Application any sample code provided in the SDK.

1.2. Restrictions. The license granted to you in Section 1.1 is subject to the following restrictions, as well as others listed in this Agreement:

1.2.1. Except as expressly permitted in Section 1.1: (a) you may not publish, distribute or copy the SDK, and (b) you may not modify or create derivative works of the SDK.

1.2.2. You may use the SDK solely in connection with Smartwhere Software.

1.2.3. You may not, and may not enable others to, reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, techniques, or algorithms in the Smartwhere Software or any software that forms part of the SDK, nor attempt to circumvent any related security measures (except as and only to the extent any foregoing restriction is prohibited by applicable law or permitted by applicable law notwithstanding the foregoing restriction, or to the extent as may be permitted by licensing terms governing use of any open source software components or sample code included within the SDK).

1.2.4. You may not remove, obscure, or alter any proprietary rights or confidentiality notices within the SDK or any software, documentation or other materials in it or supplied with it.

1.2.5. You may not create Applications or other software that prevent or degrade the interaction of Applications developed by others with the Smartwhere Software.

1.3. Updates. The terms of this Agreement will apply to any Updates that Smartwhere makes available to you. You agree that Updates may require you to change or update your Application, and may affect your ability to use, access or interact with the Smartwhere Software and/or the SDK.

1.4. Trademarks. You may indicate that your Application is “for Smartwhere” or “Smartwhere-enabled”. However, unless provided in an agreement between you and Smartwhere, you may not otherwise use “Smartwhere” or any other trademark of Smartwhere in connection with your Application or company, or in any URL, product, service, name field or logos created by you.


2. Distribution License

2.1. Distribution License. Conditioned upon compliance with the terms and conditions of this Agreement, Smartwhere hereby grants you a limited, non-exclusive, personal, revocable, non-transferable license under Smartwhere’s applicable intellectual property rights to the extent necessary to: (a) copy and distribute (or have copied and distributed) the Smartwhere Redistributables, solely as compiled with, incorporated into, or packaged with, your Application (provided it is not a Specialized Application); and (b) to make (but not have made), use, sell, offer for sale and import your Application (provided it is not a Specialized Application).

2.2. Restrictions. The license granted to you in Section 2.1 is subject to the following restrictions, as well as others listed in this Agreement:

2.2.1. Your Application may not be a Specialized Application or for a High Risk Use (as defined in Section 4.1).

2.2.2. You may not, directly or indirectly, publish, post or otherwise make available the Smartwhere Redistributables other than as compiled with, incorporated into, or packaged with, your Application.

2.2.3. You may not, and may not enable others to, distribute the Non-Redistributable Materials.


3. Open Source Materials, Other Licenses

Example code made publicly available by Smartwhere on its developer web site is provided subject to the Apache 2.0 license, unless otherwise noted in the license, notice or readme files distributed with the example or in related documentation. The SDK may otherwise include software or other materials that are provided under a separate license agreement, and that separate license will govern the use of such software or other materials in the event of a conflict with this Agreement. Any such separate license agreement may be indicated in the license, notice, or readme files distributed with the applicable software or other materials or in related documentation.


4. No High Risk Use; Acknowledgment and Waiver

4.1. Notwithstanding anything in this Agreement, you are not licensed to, and you agree not to, use, copy, sell, offer for sale, or distribute the SDK, smartwhere Software or Smartwhere Redistributables (whether compiled with, incorporated into, or packaged with your Application or otherwise), for or in connection with uses where failure or fault of the Smartwhere Software, Smartwhere Redistributables or your Application could lead to death or serious bodily injury of any person, or to severe physical or environmental damage (“High Risk Use”). ANY SUCH USE IS STRICTLY PROHIBITED.

4.2. You acknowledge the SDK may allow you to develop Applications that enable the control of motorized or mechanical equipment, or other systems, machines or devices. If you elect to use the SDK in such a way, you must take steps to design and test your Applications to ensure that your Applications do not present risks of personal injury or death, property damage, or other losses. The Smartwhere Software, the Smartwhere Redistributables and other software in the SDK may not always function as intended. You must design your Applications so that any failure of the Smartwhere Software, a Smartwhere Redistributable and/or such other software does not cause personal injury or death, property damage, or other losses. If you choose to use the SDK, (i) you assume all risk that use of the Smartwhere Software, the Smartwhere Redistributables and/or such other software by you or by any others causes any harm or loss, including to the end users of your Applications or to third parties, (ii) you hereby waive, on behalf of yourself and your Authorized Users, all claims against Smartwhere and its affiliates related to such use, harm or loss (including, but not limited to, any claim that the Smartwhere Software, a Smartwhere Redistributable or such other software is defective), and (iii) you agree to hold Smartwhere and its affiliates harmless from such claims.


5. Confidentiality and Privacy

5.1. Beta Software etc. Obligations. You acknowledge and agree that Smartwhere may share alpha or beta software or hardware with you that it identifies as non-public. If so, you agree not to disclose such software or hardware to others without the prior written consent of Smartwhere until the time, if any, it is made public by Smartwhere, and to use such software or hardware only for the purposes expressly permitted by this Agreement.

5.2. Smartwhere Use of Assets. Subject to the terms and conditions of this Agreement, you grant to Smartwhere and its affiliates a non-exclusive, worldwide and royalty-free limited license to use, reproduce, display, perform, publish and distribute screenshots, elements, assets, photographic, graphic or video reproductions or fragments of your Application in any medium or media, solely for purposes of promotion of your Application or of Smartwhere and its technology and business. This license will terminate if we terminate this Agreement, or, if you terminate it, if you inform us you have terminated it, except that in both cases the license will continue after termination with respect to any materials we created and first distributed prior to our termination or your notice of termination to us.

5.3. Your Information. Smartwhere may collect personal information provided by you or your Authorized Users to Smartwhere in connection with the SDK, and may collect other information from you or your Authorized Users, including technical, non-personally identifiable and/or aggregated information such as usage statistics, hardware configuration, problem / fault data, IP addresses, version number of the SDK, information about which tools and/or services in the SDK are being used and how they are being used, and any other information described in Smartwhere’s privacy policy. Smartwhere may use the information collected to facilitate the provision of Updates and other services to you, to verify compliance with, and enforce, the terms of this Agreement, to improve the SDK and Smartwhere’s products, and for any other purposes set out in Smartwhere’s privacy policy (these uses, collectively, are “Permitted Uses”). By submitting information about you and/or your Authorized Users to Smartwhere through your access and use of the SDK, you consent to Smartwhere’s collection and use of the information for the Permitted Uses and represent that you have obtained all consents and permits necessary under applicable law to disclose your Authorized Users’ information to Smartwhere for the Permitted Uses. You further agree that Smartwhere may provide any information collected under this Section 5.3, including your or your Authorized Users’ user name, IP address or other identifying information to law enforcement authorities or as required by applicable law or regulation.


6. Ownership and Feedback

6.1. Ownership. Except for the license rights granted by you in Section 5.2, and Smartwhere’s ownership of the Smartwhere Software and the Smartwhere Redistributables, Smartwhere agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any of your Applications, including any intellectual property rights which subsist in those Applications. As between Smartwhere and you, Smartwhere owns all right, title and interest, including all intellectual property rights, in and to the SDK, the Smartwhere Software and the Smartwhere Redistributables, other than any third party software or materials incorporated in the SDK, and you agree not to contest Smartwhere’s ownership of any of the foregoing.

6.2. Feedback. You may (but are not required to) provide feedback, comments and suggestions (collectively, “Feedback”) to Smartwhere. You hereby grant to Smartwhere a non-exclusive, perpetual, irrevocable, paid-up, transferable, sub-licensable, worldwide license under all intellectual property rights covering such Feedback to use, disclose and exploit all such Feedback for any purpose.


7. Your Obligations and Warranties

In addition to your other obligations under this Agreement, you warrant and agree that:

7.1. You are at least 18 years of age and have the right and authority to enter into this Agreement on your own behalf and that of your Authorized Users, or if you are entering into this Agreement on behalf of your company or organization, you have the right and authority to legally bind your company or organization and its Authorized Users.

7.2. You will use the SDK only in accordance with all accompanying documentation, in the manner expressly permitted by this Agreement, and your use of the SDK, and the marketing, sales and distribution of your Application, will be in compliance with all applicable laws and regulations and all U.S. and local or foreign export and re-export restrictions applicable to the technology and documentation provided under this Agreement (including privacy and data security laws and regulations), and you will not develop any Application which would commit or facilitate the commission of a crime, or other tortious, unlawful, or illegal act.


8. Agreements and Development Program

We reserve the right to change this Agreement, the SDK or the Smartwhere development and licensing program at any time in our discretion. Smartwhere may require that you either accept and agree to the new terms of this Agreement, or, if you do not agree to the new terms, cease or terminate your use of the SDK. Your continued use of the SDK after changes to this Agreement take effect will constitute your acceptance of the changes. If you do not agree to a change, you must stop using the SDK and terminate this Agreement. Any termination of this Agreement by you under this Section 8 (and only this Section 8) will not affect your right, subject to your continued compliance with your obligations under this Agreement, to continue to distribute versions of your Application created and first distributed before termination, and will not affect the right of your End Users to continue using such versions of your Application, both of which rights will survive termination.


9. Term and Termination

9.1. Term. This Agreement will continue to apply until terminated by either you or Smartwhere as set out below.

9.2. Termination by You. If you want to terminate this Agreement, you may terminate it by uninstalling and destroying all copies of the SDK that are in the possession, custody or control of you, your Authorized Users and your organization.

9.3. Termination by Smartwhere. Smartwhere may at any time, terminate this Agreement with you for any reason or for no reason in Smartwhere’s sole discretion, including as a result of non-compliance by you with the restrictions in Section 1.2 or Section 2.2, or for other reasons.

9.4. Effect of Termination. Upon termination of this Agreement, all rights granted to you under this Agreement will immediately terminate and you must immediately cease all use and destroy all copies of the SDK in your and your Authorized Users’ possession, custody or control, and, except as specifically set out in Section 8, cease your distribution of Applications. Sections 1.2, 2.2, 2.2.3, 5.1, 5.2, 6, 9.4, and 10 – 13, and the Definitions exhibit, will survive termination of this Agreement. Termination of this Agreement will not affect the right of your End Users who have downloaded your Application prior to termination to continue using it.


10. Indemnification

You agree to indemnify, hold harmless and, at Smartwhere’s option, defend Smartwhere and its affiliates and their respective officers, directors, employees, agents, and representatives harmless from any and all judgments, awards, settlements, liabilities, damages, costs, penalties, fines and other expenses (including court costs and reasonable attorneys’ fees) incurred by them arising out of or relating to any third party claim (a) with respect to your Application, including products liability, privacy, or intellectual property infringement claims, or (b) based upon your negligence or willful misconduct or any breach or alleged breach of your representations, warranties, and covenants under this Agreement. In no event may you enter into any settlement or like agreement with a third party that affects Smartwhere rights or binds Smartwhere in any way, without the prior written consent of Smartwhere.


11. Warranty Disclaimer

THE SDK, THE SMARTWHERE SOFTWARE AND THE SMARTWHERE REDISTRIBUTABLES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. SMARTWHERE, ON BEHALF OF ITSELF AND ITS SUPPLIERS, HEREBY DISCLAIMS ALL REPRESENTATIONS, PROMISES, OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SDK, THE SMARTWHERE SOFTWARE AND THE SMARTWHERE REDISTRIBUTABLES, INCLUDING THEIR CONDITION, AVAILABILITY, OR THE EXISTENCE OF ANY LATENT DEFECTS, AND SMARTWHERE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SUITABILITY, AND FITNESS FOR ANY PURPOSE. SMARTWHERE DOES NOT WARRANT THAT THE SDK, THE SMARTWHERE SOFTWARE OR THE SMARTWHERE REDISTRIBUTABLES WILL BE ERROR-FREE OR THAT THEY WILL WORK WITHOUT INTERRUPTION.


12. Limitation of Liability

IN NO EVENT WILL SMARTWHERE’S LIABILITY, OR THOSE OF ITS SUPPLIERS, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO THE SDK EXCEED ONE THOUSAND DOLLARS. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, OR A BREACH OF THE LICENSE RESTRICTIONS OR CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS OR BUSINESS INTERRUPTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.


13. Miscellaneous

13.1. Assignment. You may not assign this Agreement without the prior written consent of Smartwhere. Any assignment without such consent is void and of no effect. Smartwhere may assign this Agreement without your consent in connection with (a) a merger or consolidation of Smartwhere, (b) a sale or assignment of substantially all its assets, or (c) any other transaction which results in another entity or person owning substantially all of the assets of Smartwhere. In the event of a permitted assignment, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.

13.2. Waiver; Severability. The failure of the other party to enforce any rights under this Agreement will not be deemed a waiver of any rights. The rights and remedies of the parties in this Agreement are not exclusive and are in addition to any other rights and remedies provided by law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.

13.3. Reservation. All licenses not expressly granted in this Agreement are reserved and no other licenses, immunity or rights, express or implied, are granted by Smartwhere, by implication, estoppel, or otherwise. The software in the SDK is licensed, not sold.

13.4. Export Restrictions. The software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users, and end use.

13.5. Governing Law and Jurisdiction. This Agreement will be exclusively governed by and construed under the laws of the State of Washington, without reference to or application of rules governing choice of laws. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Seattle, Washington and you hereby consent to such jurisdiction. However, Smartwhere may apply to any court or tribunal worldwide, including but not limited to those having jurisdiction over you or your Authorized Users, to seek injunctive relief.

13.6. Relationship of the Parties. This Agreement does not create any agency, partnership, or joint venture relationship between Smartwhere and you. This Agreement is for the sole benefit of Smartwhere and you (and indemnified parties), and no other persons will have any right or remedy under this Agreement.

13.7. Notice. The address for notice to Smartwhere under this Agreement is:

Smartwhere, LLC.
81 Vine Street, Suite 302
Seattle. WA. 98121

Smartwhere may provide you notice under this Agreement by email or other electronic communication or by posting communications to its development community on the Smartwhere developer portal. You consent to receive such notices in any of the foregoing manners and agree that any such notices by Smartwhere will satisfy any legal communication requirements.

13.8. Entire Agreement. This Agreement is the entire understanding of the parties with respect to its subject matter and supersedes any previous or contemporaneous communications, whether oral or written with respect to such subject matter.


Definitions

Whenever capitalized in this Agreement:

Authorized Users” means your employees and contractors, members of your organization or, if you are an educational institution, your faculty, staff and registered students, who (a) have a demonstrable need to know or use the SDK in order to develop and test Applications on your behalf and (b) each have written and binding agreements with you to protect against the unauthorized use and disclosure of the SDK consistent with the terms and conditions of this Agreement. Authorized Users do not include End Users.

End User” means your end user customer(s) or licensee(s).

Smartwhere” “we” or “us” means Smartwhere, LLC., a Washington company with a principal place of business at 81 Vine St. Suite 302 Seattle, WA 98121.

Smartwhere Redistributables” means any framework, .jar file, .lib code, .dll files, .so files, sample code, or other materials we specifically designate in the SDK as made available for incorporation into or distribution with Applications.

Smartwhere Software” means any software provided by Smartwhere for use with the Smartwhere proximity platform.

Non-Redistributable Materials” means the Smartwhere Software, and any other code, files or materials that are not specifically designated in the SDK as made available for incorporation into Applications or that are specifically designated in the SDK as not subject to distribution.

SDK” means, collectively, the Smartwhere Redistributables, tools, APIs, sample code, software, documentation, other materials and any updates to the foregoing that may be provided or made available to you by Smartwhere in connection with this Agreement or otherwise for use in connection with the Smartwhere software to develop Applications.

Specialized Application” means an Application which is: (i) sold, licensed, leased, or otherwise disposed of for a list price of more than US$500 or local equivalent, or more than US$240 per year or local equivalent if on a subscription, lease or similar basis; or (ii) sold, licensed, leased or otherwise disposed of as part of, or for use with, another application, system, machine or device (other than a personal computer), having a list price of more than US$500 or local equivalent, or more than US$240 per year or local equivalent if on a subscription, lease or similar basis; or (iii) designed for use, or that is primarily used, with or for control, whether direct or indirect, of industrial, commercial, military or medical equipment.

Updates” means updates, upgrades, modifications, enhancements, revisions, new releases or new versions to the SDK that Smartwhere may make available to you in connection with this Agreement.

Other capitalized terms used in this Agreement have the meaning given them elsewhere in this Agreement.