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Terms of Service

 

Terms of Service

BY CLICKING ON "I AGREE" CONFIRMS YOUR INTENT TO BE BOUND BY THESE TERMS OF USE (referred to as "this Agreement"). As used in this Agreement, "you" and "your" refers to the individual and/or entity registering to use the SmartVault online service (the "Service") provided by SmartVault Corporation ("SmartVault" or "us"), a Delaware corporation, and its licensors and other suppliers (collectively, "providers"). IF YOU DO NOT WISH TO AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE REPRESENTATIONS AND WARRANTIES BELOW, DO NOT COMPLETE THE REGISTRATION PROCESS AND DO NOT USE THE SERVICE.

  1. LICENSE GRANT

    1. SmartVault grants you a limited, non-exclusive license to use the Service (the "License") in accordance with the relevant service plan, which may set forth different use rights for different categories of accounts (for example, data-repository owners, administrators, regular users, etc.).

    2. The License grant is expressly conditioned on (A) your agreement to be bound by this Agreement, (B) your payment of any required subscription fee, and (C) your compliance with this Agreement and the terms and conditions of the relevant service plan.

    3. Your License to use the Service is not transferable; you may not attempt or agree to transfer it to anyone else. Any purported transfer will be void.

    4. Your License does not allow you to use the Service (A) in connection with providing consulting- or professional services, where use of the Service is a significant component of the services, unless otherwise stated in the applicable service plan; or (B) in any other way not permitted by the applicable service plan.

    5. The License does includes a background-rights license under any patent, copyright, trade secret, or trademark right of SmartVault to the extent necessary for use of the Service, and only to that extent.

  2. YOUR REPRESENTATIONS

    1. If you are an individual, you represent and warrant that you are 18 years old or older.

    2. If you are entering into this Agreement on behalf of a corporation, partnership, or other organization having its own legal existence, you represent and warrant, on its behalf, that the organization (A) has been duly formed, (B) is in good standing in all jurisdictions where it is required to be so, and (C) has all necessary legal authority and power to enter into this Agreement.

    3. You certify that all registration information you have provided to us is complete and accurate in all material respects. If we ever have grounds to suspect otherwise, we may at our discretion suspend your access to the Service until the issue is cleared up.

  3. PAYMENTS

    1. If any amount due under the applicable service plan or otherwise under this Agreement is not paid per the agreed upon terms, SmartVault may suspend or terminate the Service, including permanently deleting stored information (after the applicable grace period stated in the service plan, if any).

    2. We reserve the right to bill the SmartVault data repository owner for any applicable taxes or similar charges imposed by competent authority in respect of the Service (excluding, for the avoidance of doubt, any taxes on SmartVault's net income).

  4. CONTENT; SECURITY

    1. SmartVault will not claim ownership of your information that you provide to the Service.

    2. All content and other intellectual property made available to you by SmartVault (other than your own) is the property of SmartVault or its providers; you may not claim ownership of any of it.

    3. As between you and SmartVault, you are solely responsible for the content of any information you send to, or store on, the Service. You will defend and indemnity SmartVault and its officers, directors, and employees from any third-party claim of any nature concerning such content.

    4. All information of a subscriber business is owned by the business and not by the individual who signs up on behalf of the business.

    5. SmartVault may in its discretion remove or block access to any content you upload to the Service in violation of the prohibited-content provisions of this Agreement. SmartVault does not undertake to police uploaded content.

    6. SmartVault will endeavor to keep its Web site up to date with respect to specific features of the Service, but you acknowledge that the information may not always be up to date.

    7. You agree that SmartVault may collect, store, use, compile, modify, translate, and/or disclose information you provide to SmartVault as stated in the SmartVault privacy policy or as required by law. IF: SmartVault receives a subpoena, search warrant, or other official request for information you have provided; THEN: SmartVault will (i) endeavor to promptly report the demand to you, subject to any applicable legal restrictions on such reporting; and (ii) provide reasonable cooperation with any efforts you might make, at your request and expense, to limit the disclosure and/or to obtain legal protection for the information to be disclosed.

    8. You agree to notify SmartVault promptly if you suspect that someone else has obtained access to your user ID or password, or that a breach of security at the Service has occurred, is about to occur, or is being planned.

    9. Except as stated in this Agreement or in the SmartVault privacy policy, it is your responsibility, not SmartVault's, to protect your password and any legal rights you may have in information you provide to the Service.

    10. We will make reasonable efforts to help you reset a lost password, but we are not responsible for any harm you may suffer if we are unable to do so and as a result you cannot access your stored information.

    11. SmartVault reserves the right to suspend an individual's access to a business account if requested by an officer or comparable official of the business.

    12. Your service plan may allow you to register a subdomain of a SmartVault URL to point to your data repository, for example, "yourname.smartvault.com". Without limiting, for example, section 5.6.11's prohibition of trademark infringement, SmartVault reserves the right, in its sole discretion, on 30 days' written notice, to require you to change any such subdomain to an alternative acceptable to SmartVault; if you do not do so, SmartVault may disable the subdomain.

  5. RESTRICTION

    1. Wherever this Agreement prohibits or restricts you from doing something, you are also prohibited or restricted from attempting to do it and from inducing, soliciting, permitting, or knowingly assisting anyone else to do so, whether for your benefit or otherwise.

    2. You may not resell access to the Service to anyone else except to the extent, if any, permitted by the applicable service plan.

    3. You may not let someone else access or use the Service under your user name.

    4. You may not disassemble, decompile, or otherwise reverse-engineer the Service or the software used to provide it.

    5. You may not make or distribute copies of, or create derivative works based on, any content provided via the Service, other than your own content or as expressly authorized in writing by SmartVault or other owner of the content.

    6. Without limiting your other obligations under this Agreement, you may not use the Service in an unreasonable manner. For purposes of illustration, an agreed, non-exhaustive list of actions that are conclusively deemed to be unreasonable is set forth below:

      • interfering with others' use of the Service.
      • accessing anyone else's information stored on the Service without proper authorization.
      • using someone else's user name and password to access the Service.
      • probing or attempting to breach the security measures of the Service or any network associated with it.
      • seeking to trace any information about, or owned by, any other user of the Service, including but not limited to personal identifying information and financial information.
      • taking any action that unreasonably burdens the Service, any network associated with it, or any other network associated with SmartVault. This may include, for example (but not as a limitation), bandwidth usage that SmartVault judges to be excessive.
      • engaging in "spoofing," for example, disguising the origin of any transmission you send to SmartVault via the Service or any network associated with it.
      • using a bot, screen scraper, Web crawler, or any other method to access the Service or any content stored at the Service, other than the user interface provided by SmartVault.
      • impersonating anyone else in connection with the Service.
      • pretending to represent another individual or entity in connection with the Service.
      • infringing someone else’s copyright, trademark, trade secret, or other intellectual property right in connection with your use of the Service.
      • exporting or re-exporting goods or technical data in violation of law.
      • using the Service to transmit or store any of the following:
        • viruses, Trojan horses, bots, crawlers, keystroke recorders, or other malware of any kind;
        • information owned by someone else without their permission;
        • information used or intended to be used in any unlawful manner, in connection with any unlawful purpose, or in any manner that could expose SmartVault to a risk of liability;
        • information that violates any other acceptable-usage policy that SmartVault may publish from time to time (we will give you notice if we do so).

  6. WARRANTY DISCLAIMER

    1. SMARTVAULT DISCLAIMS, FOR ITSELF AND ITS SUPPLIERS, all representations, warranties, duties, and conditions not expressly stated in this Agreement (or in a document expressly incorporated by reference herein). This disclaimer includes, for example, any implied warranties (as opposed to express warranties stated in this Agreement) of: (A) merchantability; (B) fitness for a particular purpose; (C)quiet enjoyment; (D) title; (E) noninfringement.

  7. LIMITATIONS OF LIABILITY

    1. Except as provided by law, or otherwise agreed in writing, NEITHER PARTY WILL BE LIABLE FOR, AND EACH PARTY AGREES NOT TO SEEK, consequential, indirect, special, punitive, exemplary, or similar damages arising out of breach of this Agreement, whether in contract, tort, or otherwise, and even if the liable party has been advised of the possibility of such damages.

    2. Except as provided by law, or otherwise agreed in writing, EACH PARTY’S AGGREGATE LIABILITY arising out of breach of this Agreement SHALL NOT EXCEED, and in respect thereof the other party agrees not to seek damages from the liable party, in excess of the amount paid or owed by you for use of the Service in the preceding 12 months.

    3. The remedy limitations of this section 7 are subject to the following exceptions (and to any other exceptions that may be required by law for the limitations to be enforceable): (A) injury (including death) to person or tangible property proximately resulting from breach of this Agreement; (B) indemnity- and claim-defense obligations under this Agreement if any; and (C) infringement of the other party’s intellectual-property rights, damages for which will be governed by law. For the avoidance of doubt, for purposes of this clause, "intellectual-property rights" includes, by way of example and not limitation, rights in confidential information.

    4. The parties specifically agree, as part of their overall agreed allocation of risk, that each remedy limitation of this Agreement is to be enforced: (A) to the maximum extent permitted by applicable law; (B) independently of any other applicable remedy limitation, even if a particular remedy is held to have failed of its essential purpose; and (C) independently of any warranty-disclaimer provisions of this Agreement.

    5. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of certain liabilities. In those jurisdictions, some of the above disclaimers and limitations might not apply to you.

  8. AMENDMENTS & MODIFICATIONS

    1. SmartVault reserves the right to modify the Service; to offer new service plans and discontinue existing ones; and to modify its pricing. We will not discontinue your access to a service plan during your then-current paid subscription, however, unless, at our sole discretion, we upgrade you to a higher-level service plan for the remainder of the subscription period at no extra charge.

    2. This Agreement will govern any new features or enhancements to the Service that we may release from time to time (in our sole discretion) unless we elect to release them under a separate agreement.

    3. SmartVault may amend this Agreement from time to time. If we do, we will give you at least five (5) business days' advance notice. If you do not wish to agree to an amendment to this Agreement, YOUR SOLE REMEDY IS TO CANCEL YOUR LICENSE, in which case we will refund the unused pro-rata portion of your paid fee for an annual subscription but not for any shorter subscription period. If you continue to use the Service after the end of the advance-notice period, the amended Agreement will control.

  9. BREACH; DISPUTES

    1. If you breach this Agreement, SmartVault reserves the right to suspend and/or terminate your License to use the Service by notice to you. By way of example and not of limitation, pursuant to the safe-harbor provisions of the Digital Millennium Copyright Act (DMCA), if we conclude that you have repeatedly infringed the intellectual property rights (for example, copyrights, trademarks, patents, rights in confidential information) of SmartVault or its providers, or that you are inducing, permitting, or knowingly assisting others to do so, we have the right to terminate your License to use the Service.

    2. SmartVault is not responsible for any loss or damage you may incur that arises from your violation of this Agreement.

    3. All disputes arising out of or relating to this Agreement, or its interpretation, validity, or enforcement, are to be decided in accordance with the laws of the United States of America and the State of Texas that would be applied, by the courts having jurisdiction Texas, to contracts made and performed entirely there by residents thereof.

    4. All disputes arising out of this Agreement will be resolved by binding English-language arbitration, under the (U.S.) Federal Arbitration Act and (to the extent not inconsistent with the FAA) the law governing this Agreement. The arbitration will be conducted, before an arbitration panel consisting of a single arbitrator, in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA"). Unless otherwise agreed, the arbitration will be administered by the AAA. The arbitration panel is specifically authorized and directed to take all reasonable measures to streamline and expedite the proceedings. Any resulting award will be enforceable in any court of competent jurisdiction. EXCEPTION: A party seeking temporary, interim, or preliminary injunctive relief in respect of a dispute may do so in any court of competent jurisdiction without waiving its right to arbitration of the dispute or of other disputes. YOU ACKNOWLEDGE THAT BY ENTERING INTO THIS AGREEMENT YOU ARE WAIVING YOUR RIGHT TO TRIAL BY JURY.

    5. The courts having subject-matter jurisdiction in Houston, Texas, USA will have jurisdiction of any dispute not required by this Agreement to be decided by arbitration. Each party consents to, and agrees not to contest, personal jurisdiction in such courts. The jurisdiction of the above-named courts is exclusive; each party agrees not to contest venue there and waives any claim of inconvenient venue.

    6. Any claim under this Agreement, in any forum, must be commenced within one year after accrual of the claim.

    7. In any dispute, at either party's request the parties will jointly consult an experienced, knowledgeable, neutral individual, informally and in confidence, for non-binding advice as to what would constitute a responsible resolution of the dispute. Any procedural disagreement concerning the consultation will be resolved by reference to the Early Neutral Evaluation Procedures of the American Arbitration Association (AAA) then in effect, to the extent not inconsistent with this Agreement.

  10. OTHER PROVISIONS

    1. You agree to notify SmartVault promptly if your email address or other contact information has changed.

    2. We may give any notice under this Agreement (i) by making it available on our Web site and displaying a suitable advisory on the site while you are accessing it, or (ii) sending you an email to the address you have listed in our records. All other notices required or permitted by this Agreement: (i) must be in writing; (ii) must be marked for the attention of a specific individual or position; and (iii) are effective when received or refused by that individual or position as shown for example by delivery- service confirmation or an email "delivered" or "read" confirmation message.

    3. If a court or other authority issues a ruling or order, or a legislative or administrative body enacts a statute, regulation, or interpretation, and SmartVault concludes that an aspect of the Service or of this Agreement may be in conflict therewith, then SmartVault reserves the right to suspend or terminate all or any relevant aspect of the Service.

    4. This Agreement is the final, complete, exclusive, and binding statement of the terms and conditions governing your use of the Service. In entering into this Agreement, neither party is relying on any promises, warranties, or representations by the other party that are not stated in (or expressly incorporated by reference into) this Agreement.

    5. Other or additional terms and conditions may apply to specific portions or features of the Service; in case of a conflict between them and this Agreement, the former will control, but only as to your use of the relevant portion or feature.

    6. Your use of SmartView’s desktop-client software is governed exclusively by the relevant end- user license agreement.

    7. If any provision of this Agreement is held to be invalid, void, unenforceable, or otherwise defective by a court or other tribunal of competent jurisdiction, then (i) all other provisions will remain enforceable, and (ii) such provision will be deemed modified to the minimum extent necessary to cure the defect.

    8. A waiver by either party of a particular condition, right, or obligation arising under this Agreement (A) is to be given effect only if it is expressly stated in a document signed by that party, and (B) is to be strictly construed.

 
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