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Software as a Service Terms of Use

 

Smart Innovations, LLC

Welcome retailers and thank you for using the Smart Innovations, LLC ("SI") rewards products and services! By utilizing SI's software, on behalf of yourself or the company you work for ("Subscriber") both you and Subscriber are accepting and agree to be bound by these terms of use.

 

1. DEFINITIONS.

The following definitions apply:


  1. "Content" means the audio and visual information, documents, software, products, and services contained or made available to Subscriber in the course of using the Services.
  2. "Customer Data" means any data, information or material provided or submitted by Subscriber to the Services in the course of using the Services.
  3. "Term" means the period during which Retailers. ("Retailers") has contracted with SI to provide the Services to its "Connect Dealers."
  4. "Services" means the SI's e-marketing software which is licensed to Subscriber as a "retailer," pursuant to SI's services agreement with retailer.
  5. "Subscription" means the Subscriber's selection of certain Services from those Services that are available.
  6. "User(s)" means Subscriber's employees, representatives, consultants, contractors, or agents who are authorized to use the Services and have been supplied user identifications and passwords by Subscriber (or by SI at Subscriber's request).

2. SERVICES.

SI has agreed to make the Services available to Subscribers that are authorized retailers. These terms of use apply to the Services defined in section 1. Subscriber may license additional software applications or other services from SI, provided that SI may require Subscriber to accept an additional End User License Agreement for any additional software licenses or other services.


  1. Modifications. to things like changes to the law or changes to functionality, SI may need to change the terms of this agreement or its policies from time to time. SI may present and require you to accept modified terms and conditions which supercede this agreement or may post a notice of such modified terms and conditions within the Online Order Center. If SI posts a notice of modified terms, then any such changes will become effective seven (7) days after they are posted, unless such changes apply to new functionality, which are effective immediately. If you do not agree to these modifications, SI may deny you access to the Services.
  2. Authority to Accept. You represent that you are either the Subscriber or have full legal authority on behalf of the Subscriber to bind yourself and the Subscriber to this agreement. You represent that you are of legal age to form a binding contract and have full power, capacity and authority to accept this agreement. If you do not have the legal authority to bind the Subscriber, please ensure that an authorized person from the Subscriber consents to and accepts this agreement.
  3. Additional Services and Terms. Because SI’s Services are diverse and may change from time to time, additional terms or product requirements (e.g. age requirements, etc.) may apply. If additional terms apply to any Services, then those terms will become part of your agreement with SI if you use those Services.

3. SUBSCRIBER OBLIGATIONS AND PROHIBITED ACTIVITIES.

Subscriber shall:


  1. Be responsible for all activity occurring under Subscriber's account maintained by SI ("Account"), use the Services only for purposes that are legal, proper and in compliance with these terms of use and any of SI's applicable guidelines and policies, and abide by all applicable local, state, national, and foreign, laws, treaties and regulations in connection with Subscriber's use of the Services, including those related to data privacy, international communications, the transmission of technical or personal data;
  2. Provide current, accurate identification, contact, and other information as part of the registration process for Subscriber's Account and/or continued use of the Services. Subscriber is responsible for maintaining the confidentiality of all Account passwords and activities that occur under its Account;
  3. Immediately notify SI of any unauthorized use of a password or Account or any other breach of security;
  4. Use reasonable efforts to prevent any unauthorized copying, distribution or use of the Content or Software Application and immediately report any such unauthorized activity to SI; and
  5. Ensure that no User impersonates another User or provides false information to gain access to or use of the Services.
  6. Prohibited Activities. Subscriber shall not use the Services for any purposes that are illegal, improper or in violation of these terms of use; by way of example, Subscriber shall not:
  • defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
  • upload, post, email or transmit or otherwise make available any inappropriate, defamatory, infringing, obscene, or unlawful material;
  • upload, post, email or transmit or otherwise make available any material that infringes any patent, trademark, copyright, trade secret or other proprietary right of any party, unless you are the owner of such rights or have the permission of the owner to post such material;
  • upload, post, email or transmit or otherwise make available messages that promote pyramid schemes, chain letters or disruptive commercial messages or advertisements, or anything else prohibited by law, these terms of use or any applicable policies or guidelines.
  • download any file posted by another that you know, or reasonably should know, that cannot be legally distributed in such manner;
  • impersonate another person or entity, or falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;
  • restrict or inhibit anyone from using or licensing SI's Services;
  • use Services for any illegal or unauthorized purpose;
  • remove any copyright, trademark or other proprietary rights notices contained in or on the Services;
  • interfere with or disrupt SI services or servers or networks connected to SI services, or disobey any requirements, procedures, policies or regulations of networks connected to SI services;
  • use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Services;
  • submit material that falsely expresses or implies that such material is sponsored or endorsed by SI;
  • create User accounts by automated means or under false or fraudulent pretenses;
  • promote or provide instructional information about illegal activities or promote physical harm or injury against any group or individual; or
  • transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature.

4. PROPRIETARY RIGHTS AND LICENSES.

SI has agreed to make the Services available to Subscribers that are authorized retailers. These terms of use apply to the Services defined in section 1. Subscriber may license additional software applications or other services from SI, provided that SI may require Subscriber to accept an additional End User License Agreement for any additional software licenses or other services.


  1. SI's Rights. The Services are SI's proprietary, intellectual property protected by the applicable copyright, patent, trade secret and other laws. SI hereby grants Subscriber and each User a limited, personal, non-transferable and non-exclusive license to use the Services as a service over the internet for the term hereof and no longer. Subscriber and Users shall not: (i) copy, modify, creative a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sub license, grant a security interest in or otherwise transfer any right in the Services; (ii) modify the Services in manner or form, or use modified versions of the Services; (iii) access the Services, or Content contained therein, by any means other than through the interface that is provided by SI; or (iv) disclose any username or password used to access the Services to any third party. Except for the limited license granted in this section, SI reserves all rights to the Services, Content and all of its other intellectual property. These terms of use are not a sale and does not convey to Subscriber any rights of ownership in or related to the Services owned by SI. SI's name, SI's logo and the product names associated with the Services are trademarks of SI, and no right or license is granted to use them.
  2. Subscriber's Rights. By utilizing the Services, Subscriber hereby grants SI a perpetual, non-exclusive, worldwide, royalty free license to use all Customer Data contained therein. SI shall not disclose any personal identifying information contained within Customer Data. It is SI's policy to respond to notices of alleged infringement that comply with the United States Digital Millennium Copyright Act or other applicable law. For more information please visit www.copyright.gov. Except for the license granted in this section, each Subscriber reserves all rights to its Customer Data.

5. CUSTOMER DATA.

Subscriber, not SI, has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and SI will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Subscriber shall submit Customer Data in a manner that complies with the then-current specifications provided by SI to enable proper delivery and display of the Customer Data. Subscriber hereby grants SI the right to access, index, cache or crawl the Customer Data or any portion thereof in connection with SI's authorized use of the Customer Data.


6. SUBSCRIBER’S SYSTEM AND INTERNET DELAYS.

Subscriber shall notify SI of any modifications, alterations, discontinuations or other changes to Subscriber's management system software or it's Internet Protocol Address. SI is not responsible for any disruptions or failures of the Services that occur as a result of the Subscriber's failure to notify SI of these changes.


7. THIRD PARTY INTERACTIONS.

During use of the Services, Subscriber may enter into correspondence with or promote its goods and services through the Services. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, is solely between Subscriber and the applicable third party. SI and its licensors shall have no liability, obligation, or responsibility for any such correspondence, purchase, or promotion between Subscriber and any such third party.


8. TERMINATION.

These terms of use will remain in effect until the termination of SI's services agreement with the retailer, providing for the license of SI's e-marketing software to the retailer. Subscribers may cancel its use of Services at any time. SI may at any time and for any reason, including a period of inactivity, suspend or terminate access to the Services. In the event of termination, your account will be disabled and you may not be granted access to your account or any files or other content contained in your account although residual copies of information may remain in our system.


9. INDEMNITY AND RELEASE.

Subscriber shall indemnify SI, and its subsidiaries, affiliates, officers, agents, and employees, advertisers or partners, from and against all losses and liabilities relating to: (i) third party claims resulting from Subscriber's unauthorized use of the Services; and (ii) Subscriber's breach of these terms of use. This indemnification includes any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, SI will provide you with written notice of such claim, suit or action, and tender the control of any defense thereof to Subscriber. SI may participate in any defense at its expense with counsel of its choosing.


Subscriber hereby releases SI from all losses and liabilities relating to Subscriber's errors in using the Services. For example, if Subscriber makes a mistake in entering Customer Data, a customer could be incorrectly awarded additional reward points.


10. DISCLAIMER OF WARRANTIES.

The following definitions apply:


  1. Subscriber's use of the Services is at its sole risk. Services are provided on an "as is" and "as available" basis. SI expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
  2. SI makes no warranty that (i) Services will meet your requirements or expectations, (ii) Services will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of Services will be accurate or reliable, and (iv) any errors in the Services will be corrected.
  3. No advice or information, whether oral or written, obtained by Subscriber from SI or through or from Services shall create any warranty not expressly stated in the terms of service.

11. LIMITATION OF LIABILITY.

Except for claims relating to copyright or trade secret infringement, 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 loss of data, revenue, profits, use, or other economic advantage) arising out of, or in any way connected with the Services, including the use or inability to use the Services, 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.


12. EXCLUSIONS AND LIMITATIONS.

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply.


13. NO THIRD PARTY BENEFICIARIES.

There are no third party beneficiaries to these terms of use.


14. NOTICE.

SI may provide you with notices, including those regarding changes to these terms of use by means of a general notice on the Service, email to Subscriber's address on record in Subscriber's Account, or by written communication sent by mail to Subscriber's address on record.


15. MISCELLANEOUS.

The following definitions apply:


  1. Entire Agreement. These terms of use is the entire agreement between you and SI relating to the subject matter hereof and supercedes any prior agreements and understandings.
  2. Choice of Law and Forum. These terms of use will be governed by the laws of the State of Wisconsin without regard to its conflict of law provisions. The parties agree to submit to the personal and exclusive jurisdiction of the courts within Milwaukee County, Wisconsin.
  3. Waiver and Severability of Terms. SI’s failure to exercise or enforce any provision of these terms of use will not constitute a waiver of such provision. If any provision is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these terms of use remain in full force and effect.
  4. Survival. Sections 4(b), 9, 10 and 11, will survive any termination of these terms of use.
  5. Statute of Limitations. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Services or these terms of use must be filed within one (1) year after such claim or cause of action arose or be forever barred.
  6. Section Headings. The section headings in these terms of use are for convenience only and have no legal or contractual effect.

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