SMAC Pro - Terms of Service

SMAC Software Terms of Service

Last modified: March 27, 2022

Please review these terms (the “Agreement”) carefully. By accessing or using the Software Services offered by SMAC Software LLC. (“SMAC Software”, “we” or “us”), you are confirming that you have read, understand and accept this Agreement. This Agreement can be updated from time to time as set out in Section 35 below. You are responsible for regularly reviewing the most current version of this Agreement, which is published at: http://www.smacpro.com/Legal/TermsOfService, though we will notify you of any changes that, in our sole discretion, materially impact this Agreement. Continued use of the Software Services after any such changes have been made will constitute your consent to such changes. When we change this Agreement, we will update the “Last Modified” date above.

This Agreement applies to the “Software Services”, which are services that you access or purchase through our website or mobile applications, as further defined below. Other terms may also apply to your use of the Software Services.

By using our Software Services, you confirm that:

A. You will only use our Software Services for business and professional reasons;

B. You are at least 18 years old or otherwise able to enter into a legally binding agreement;

C. You accept and will comply with this Agreement;

D. If you are using our Software Services as a representative of an organization, you have the power to enter into legally binding agreements for the organization; and

E. You are responsible for anyone that uses our Software Services through your account, such as your employees, consultants or contractors (“Authorized Users”).

SMAC Software Terminology

1. We use capitalization for terms that have a special meaning in this Agreement. While some terms are defined elsewhere, this section sets out the definitions of some key terms.

“Content” is a generic term that means all information and data (such as text, images, photos, videos, audio and documents) in any format that is uploaded to, downloaded from or appears on our Software Services.

“Customer Content” is Content that you or your Authorized Users provide to us, or upload to our Software Services.

“Mentions” are the Content that a third party (in other words, someone other than you, your Authorized Users or SMAC Software) creates and that we obtain on your behalf and at your instruction from Social Networks or other Third-Party Services that you connect to our Software Services. For example, posts created by your followers that appear on your Facebook page would be considered Mentions.

“Software Services” means our websites, such as smacpro.com (and all its current and future subdomains), and mobile applications, and any services that you access or purchase through our websites or mobile applications, but do not include (a) Third-Party Services (see below for how we define those) that you access or use in connection with our services.

“Third-Party Services” are services that are not provided by SMAC Software but that you may access or use in connection with our Software Services. They include the “Social Networks”, which are the social networking sites that may be supported by our Software Services (such as Twitter, Facebook, LinkedIn and Instagram.

“you”, “your”, “Customer”, and similar terms mean the person or legal entity accessing or using the Software Services. For the avoidance of doubt, if you are accessing and using the Software Services on behalf of a company (such as your employer) or other legal entity, “you”, “your” or “Customer” means the company or other legal entity that you are using the Software Services on behalf of.

SMAC Software's Software Services

2. Subject to the rest of this Agreement, we will allow you and your Authorized Users to access and use our Software Services in the way set out in the plan you subscribed to. You may not use or access the Software Services in any other way, such as using robots, spiders, crawlers and scraping technologies.

3. Our Software Services evolve constantly. We may change our Software Services, such as by changing, adding or removing features at any time, for any reason. We may or may not provide notice of those changes to you. We will not be liable to you or any third party for the modification, price change, suspension or discontinuance of any of our Software Services.

4. Our Software Services may interact with Social Networks and depend on the availability of those Social Networks and the features and functionality they make available to us, which we do not control and may change without notice. If at any time a Social Network stops making some or all of its features or functionality available to us, or available to us on reasonable terms as determined by SMAC Software in its sole discretion (each an “API Change”), we may stop providing access to those features or functionality and we will not be liable to you or any third party for any such change.

Acceptable Use Rules

5. You and any Authorized Users using your account must comply with the Acceptable Use Rules and all laws. If we reasonably believe that you have breached the Acceptable Use Rules or any applicable law, we may, at any time and without notice, remove any of your Content and suspend, restrict or terminate your account or your access to the Software Services.

6. This Software Services does not allow a photo or video to be submitted through the Software Services that:

Harasses, bullies, or is hateful.
Photo or video cannot be used to harass or bully individuals, including direct physical threats or exposure of private information that could be used to carry out implied threats.
Text, images, videos, or links cannot include slurs or derogatory epithets about groups based on ethnic origin, race, religion, disability, gender, age, veteran status, sexual orientation, or nationality (“protected groups”).
Published photo or video cannot promote hatred or incite violence against individuals or protected groups.
Disparages a person, place, or thing, or that would likely make the reader or listener upset or angry.
Contains obscene, profane, or offensive language or gestures.
Promotes or encourages violence, or that graphically depicts injuries, abuse of humans or animals, or violent acts.
Additionally, photo or video that's likely to shock or disgust is not permitted.
Is sexually suggestive or sexually explicit.
Photo or video published on this Software Services cannot include nudity or sex acts.
Photo or video cannot include profanity, slang terms that are sexually graphic and offensive, terms that are common signals for pedophilia, content that promotes pedophilia, bestiality, sexual violence, or content that promotes escort services or other services that may be interpreted as providing sexual acts in exchange for compensation. Links to adult content are not permitted.

Customer Content

7. If you use the Software Services to ask people to submit Content through the Software Services (“Submitted Content”), you acknowledge and agree that:

(A) the Software Services do not help you comply with any laws, rules, or regulations that may apply to your collection or use of Submitted Content, which is solely your responsibility; and

(B) we will not be liable to you or any third party for the Submitted Content, and we make no warranty that any Submitted Content obtained or displayed through the Software Services is accurate or complete.

Account Information

8. You are responsible for the completeness, security, confidentiality and accuracy of the account information you provide to us. You will promptly notify us of any unauthorized access to or use of your log-in credentials or account.

Content and Third-Party Services

9. We are not responsible for Content provided by others, including Mentions and Content from Third-Party Services (such as Content from Social Networks). You and anyone else who accesses our Software Services may access Content that might be unlawful, offensive, harmful, inaccurate or otherwise inappropriate. We will not be liable to you or any third party for Content provided by others.

10. If you access or purchase a Third-Party Service through our Software Services, you do so at your own risk. Your relationship with the Third-Party Service provider is an agreement between you and them. You specifically understand that we are not responsible for Third-Party Services and will not be liable to you or any third party for any losses or damages resulting from your use of Third-Party Services.

11. If you access or enable a Third-Party Service, you grant them permission to access or otherwise process your data as required for the operation of the Third-Party Service. We are not responsible for disclosure, use, change to or deletion of your data and will not be liable to you or any third party for access to your data by a Third-Party Service.

12. We may, but do not have to, preview, verify, flag, modify, filter, block or remove Third-Party Services. You must comply with all agreements and other legal requirements that apply to Third-Party Services.

Confidentiality

13. If we share non-public information about SMAC Software or our Software Services with you, you must keep it confidential and use reasonable security measures to prevent unauthorized disclosure of or access to that information.

Intellectual Property

14. Customer Content. You retain your rights to any Customer Content you submit, post or display on or through the Software Services. You grant us a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to use, host, run, copy, reproduce, process, adapt, translate, modify, publish, transmit, display and distribute Customer Content for the purposes of providing, supporting, enhancing, and developing our products and services.

15. Feedback. We welcome your suggestions, comments, bug reports, feature requests or other feedback (“Feedback”). We do not have to keep Feedback confidential, even if you tell us it is confidential. If you provide Feedback, you grant SMAC Software a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use the Feedback for any purpose.

16. Software Services. We keep all rights and interests in our Software Services. The Software Services contain Content owned or licensed by SMAC Software (“SMAC Software Content”). SMAC Software Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and SMAC Software, we own and retain all rights in the Software Services and in any SMAC Software Content.

Payment Terms, Trials and Renewal

17. Fees and Trials. You must pay all fees for the Software Services you purchase, except for Software Services that we expressly offer free of charge. If you sign up for a free trial of a paid Software Service, we may require you to provide a valid credit card or other payment method. We will charge you automatically on the first day after the free trial is over, unless you cancel or downgrade to a charge-free service and uninstall any paid apps before the end of the free-trial period.

18. Paid Services. The SMAC Software Online Payment Terms apply to your purchase of any paid Software Services.

19. Auto-Renewal of Software Services. Software Services plans will renew automatically at the end of the term (which may be monthly or annually, depending on the plan you chose when you purchased our Software Services), and we will automatically bill you on renewal unless you cancel or downgrade our Software Services under Section 21 below.

20. Taxes. You are responsible for paying all taxes on all fees that you pay to us. Local taxes may differ based on your payment method.

Cancellation and Termination of Software Services

21. You may cancel or downgrade your Software Services plan at any time . If you cancel (or downgrade) paid Software Services, you must continue to pay for the rest of your plan term and you are not entitled to a refund.

22. We may refuse to provide service (including the Software Services) to anyone for any reason at any time. We may also immediately suspend or terminate your access to our Software Services for any reason, at any time, without notifying you in advance. If we terminate this Agreement because you violated the Acceptable Use Rules or any other part of this Agreement, you will not receive a refund. If we terminate your access to the Software Services under this section for no reason, we will refund you for the Software Services you have not yet received.

Disclaimer of Warranties and Limitation of Liability

23. We offer our Software Services “as is” and are not making any warranties, conditions, representations or guarantees of any kind, whether express, implied, statutory or otherwise, including all express or implied warranties of design, merchantability, fitness for a particular purpose, title, quality and non-infringement, that our Software Services will meet your requirements or that our Software Services will always be available, accessible, uninterrupted, timely, secure, accurate, complete or error-free. Use our Software Services at your own risk. You hereby release us and our affiliates and the directors, officers, employees, agents, licensors and service providers of SMAC Software and our affiliates (the “SMAC Software Parties”) from any claims, known or unknown, you have against them.

24. We will not be liable for indirect, punitive, incidental, special, consequential or exemplary damages, or for loss of profits, goodwill or data or other intangible losses, that result from the use of, or inability to use, our Software Services or any other aspect of this Agreement. Under no circumstances will we be liable for any Third-Party Services, Social Networks or activities of third parties, any connection to or transmission from the Internet, or for any damage, loss or injury resulting from hacking, tampering, theft or other unauthorized access to or use of our Software Services or your account or the information contained in your account, including Customer Content.

25. Our aggregate liability to you for all losses or damages arising out of this Agreement or your use of our Software Services, even if we have been advised of the possibility of such losses, will not exceed the greater of the fees we received from you for our Software Services that are subject to the claim during the three-month period immediately preceding the date on which the damages arose and USD$100. The limitations of liability in this section also apply to the SMAC Software Parties and to claims brought based on any cause of action, including breach of contract, tort (including negligence), statute or other legal or equitable theory. If there is a law that limits how the limitation of liability in this section applies to you, our liability will be limited to the fullest extent permitted by law.

26. No advice or information, whether oral or written, obtained from us or elsewhere will create any warranty or condition not expressly stated in this Agreement.

27. Our prices are set based on limitations of liability and the disclaimers of warranties in this section. You acknowledge that they will survive and apply even if found to have failed their essential purpose.

28. If you are dissatisfied with our Software Services or believe that you’ve been harmed by your use of our Software Services or this Agreement, you may terminate your use of our Software Services (as set out above). That termination is your sole and exclusive remedy (and our sole and exclusive liability) under this Agreement.

Claims and Disputes

29. The laws of the State of Indiana and laws of the United States of America will govern any dispute, cause of action or claim arising out of this Agreement or your use of our Software Services, including against any SMAC Software Party (“Dispute”), without giving effect to conflict-of-law principles.

30. You will indemnify and hold harmless the SMAC Software Parties from and against all losses, damages, penalties, liability and costs, including reasonable legal fees, of any kind or nature related to any claim against a SMAC Software Party related to: (a) Customer Content or Submitted Content; (b) your breach of this Agreement or any laws; or (c) your use of our Software Services or any Third-Party Services (including your breach of terms for any Third-Party Services).

31. If you breach this Agreement or violate our rights or another person’s rights, we may ask a court to stop you; if we bring a claim against you, you will reimburse us for our reasonable legal fees for that claim.

32. If you have any kind of Dispute with us, the exclusive means of resolving it will be by confidential, binding arbitration before a single arbitrator chosen by you and SMAC Software. You will give notice of your Dispute to us in writing. If we do not decide together on an arbitrator within 15 days after we receive that notice. The arbitration will take place in Indianapolis, Indiana. The arbitrator will have the right to decide how the costs should be divided between us. The arbitrator will have the right to accept whatever kind of evidence they think is appropriate and will have the right to make whatever award they consider fair and equitable, based on legal and equitable principles, including giving an order such as an injunction (to stop one of us from doing something) or an order that you or we pay damages to the other.

33. Any Dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. SMAC Software and you each waive any right to a trial by jury.

Miscellaneous

34. Export Compliance. You will not use or access our Software Services if you are located in any jurisdiction in which the provision of our Software Services is prohibited under U.S. or other laws (a “Prohibited Jurisdiction”) and you will not provide access to our Software Services to any government, entity or individual located in any Prohibited Jurisdiction. You confirm that you are not named on any U.S. government list of persons or entities prohibited from transaction with any U.S. person; (b) you are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) you will not allow Authorized Users to access or use our Software Services in violation of any U.S. or other export embargoes, prohibitions or restrictions; and (d) you will comply with all laws regarding the transmission of data exported from the country in which you (or your Authorized Users) are located to the United States.

35. Amendment. We may change any part of this Agreement (including any terms or documents incorporated by reference in this Agreement) at any time by posting the revised terms on the SMAC Software website, and your use of the Software Services after the effective date of the updated Agreement or other terms constitutes your agreement to the updated Agreement or other terms, as applicable. It is important for you to review this Agreement before using our Software Services and from time to time. The updated Agreement will be effective as of the time of posting, or on such later date as may be specified in the updated Agreement, and will apply to your use of the Software Services from that point forward.

36. Assignment. You may not assign your rights under this Agreement to anyone else. We may assign our rights to any other individual or entity.

37. Severability. If a court finds part of this Agreement to be invalid, the rest will continue to apply with the minimum changes required to remove the invalid part.

38. Force Majeure. We will not be liable to you or any third party for any failure to perform our obligations under this Agreement if that failure results from any cause beyond our control, such as the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks or other acts of hackers; Internet or network failures or interruptions; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lockouts or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts; or if another person (including a Social Network) changes their services or terms or no longer offers their services to you or SMAC Software on terms we believe are reasonable.

39. Remedies. If we fail to enforce this Agreement, we are not waiving our right to do so. Any remedies we have under this Agreement are not exclusive of any other remedies we may have under this Agreement, at law or otherwise.

40. Notices to You. SMAC Software may give notice to you by placing a banner notice on the SMAC Software platform or SMAC Software’s website. We may also contact you or your Authorized Users through your SMAC Software account or contact information you provide, such as email or telephone or through your account on one or more Social Networks. If you fail to maintain accurate account information, such as contact information, you may not receive critical information about our Software Services or this Agreement.

41. Notices to SMAC Software. For any notice to SMAC Software that you give under or regarding this Agreement, you must notify SMAC Software by email to [email protected] with a duplicate copy sent via registered mail to the following address: SMAC Software LLC, 11650 Olio Road, STE 1000-252, Fishers, IN 46037.

42. Entire Agreement. This Agreement, including the other documents referred to as applicable to the Software Services in this Agreement, is the entire agreement between you and SMAC Software for your use of our Software Services. Any prior understandings, statements or and agreements (oral or written) do not apply, including additional terms that you may present (such as terms in a unilateral notice from you to us or printed on a purchase order or any other document generated by you). This Agreement is binding on the parties and their permitted successors and assigns.