TERMS & CONDITIONS OF USE
S.M.A.R.T. – Trial and Subscription Agreement
COLLINS SAFETY SERVICES LIMITED
(“S.M.A.R.T.”) – Safety, Management, Administration Reporting, Tracking
TERMS & CONDITIONS OF USE
BY CHECKING THE “TERMS OF SERVICE” BUTTON AND/OR CLICKING THE “REGISTER” BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS & CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF SMART’S ONLINE SERVICE, INCLUDING OFF-LINE COMPONENTS (COLLECTIVELY, THE “SERVICE”). 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 & CONDITIONS, 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 & CONDITIONS, YOU MUST PROCEED WITH THE REGISTRATION PROCESS OR USE THE SERVICE.
As part of the Service, S.M.A.R.T. will provide you with use of the Service, including a browser interface, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available through S.M.A.R.T.’s website incorporated by reference herein, including but not limited to S.M.A.R.T.’s privacy and security policies.
For reference, a Definitions section is included at the end of this Agreement, though, please note that some Definitions are established throughout the text and headers of this Agreement.
A. Privacy & Security, Disclosure
Preferences. Note that because the Service is a hosted, online application, S.M.A.R.T. may occasionally need to notify all Users (whether or not they have opted out as described above) of important announcements regarding the operation of the Service.
If you become a paying customer of the Service, you agree that S.M.A.R.T. can disclose the fact that you are a paying customer and the modules of the Service that you are using.
B. License Grant and Restrictions
S.M.A.R.T. hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the Terms & Conditions of this Agreement. All rights not expressly granted to you are reserved by S.M.A.R.T., S.M.A.R.T.’s Group Companies and its licensors.
You may not access the Service if you are a direct competitor of S.M.A.R.T., or are working on behalf of one, except with S.M.A.R.T.’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
You shall not; (i) license, sub-license, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service. S.M.A.R.T. is not obligated to provided support services for the use of the application without charge and may at it’s discretion, charge said support services upon providing notice to the client of intended fees.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violate third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
C. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, provincial, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify S.M.A.R.T. (email@example.com) immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to S.M.A.R.T. immediately and use reasonable efforts to immediately stop any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another S.M.A.R.T. User or provide false identity information to gain access to or use the Service.
D. Account Information and Data
S.M.A.R.T. does not own any data, material or information that you submit to the Service in the course of using the Service (“Customer Data”). You, not S.M.A.R.T., shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and S.M.A.R.T. shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event you intend to terminate the Service, you are responsible for copying or backing up any data from S.M.A.R.T. that you may need for the future, as S.M.A.R.T. can not provide such data for you once the termination has taken place. S.M.A.R.T. reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and S.M.A.R.T. shall have no obligation to maintain or forward any Customer Data.
You agree that you are solely responsible for the content of your account, and you further acknowledge that the Provider acts as a passive conduit for the storage of data.
F. Intellectual Property Ownership
S.M.A.R.T., S.M.A.R.T.’s Group Companies and its licensors, where applicable, shall alone own all rights, title and interest, including all related Intellectual Property Rights, in and to the S.M.A.R.T. Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement does not constitute a sale and does not convey to you any rights of ownership in or related to the Service, the S.M.A.R.T. Technology or the Intellectual Property Rights owned by S.M.A.R.T. or S.M.A.R.T.’s Group Companies. The S.M.A.R.T. name, the S.M.A.R.T. logo, and the product names associated with the Service are trademarks of S.M.A.R.T. or S.M.A.R.T.’s Group Companies and no right or license is granted to use them. You agree not to resell or make any commercial use of the Service without the express written consent of the Provider and you agree to be fully liable for the use of your account, including any unauthorized use of your account by a third party.
G. Third Party Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third party. S.M.A.R.T., S.M.A.R.T.’s Group Companies and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third party. S.M.A.R.T. does not endorse any sites on the Internet that are linked through the Service. S.M.A.R.T. provides these links to you only as a matter of convenience, and in no event shall S.M.A.R.T. or its licensors be responsible for any content, products, or other materials on or available from such sites. S.M.A.R.T. provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
H. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. The initial charges will be equal to the current number of total Users requested multiplied by the User license fee currently in effect. Payments must be made monthly in advance unless otherwise mutually agreed upon through the provider. All payment obligations are non-cancellable and all amounts paid are non-refundable, including payments made for credits towards S.M.A.R.T.’s text messaging service and/or any other services. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. As a condition to signing up for the Service, you must have pre-paid for the Service using a credit or debit card, or similar with the payment being confirmed to S.M.A.R.T. by PayPal (or an alternative recognized service provider that S.M.A.R.T. may use in the future to administrate customer payments).
Your authorized License Administrator may add licenses at any time by using the normal order methods. Added User licenses will be subject to the following: (i) added licenses will run concurrently with the pre-existing License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee as per the Invoice Date for the next License Term; and (iii) licenses added in the middle of a billing month will be charged in full for the month they where purchased in.
S.M.A.R.T. reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days’ prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
I. Billing and Renewal
S.M.A.R.T. charges and collects in advance for use of the Service. S.M.A.R.T. licenses are charged on a subscription fee basis and automatically renew each month or yearly, whichever is effective at the time of purchase. You can find the details of your account, in your S.M.A.R.T. Account page within the S.M.A.R.T. website. The renewal charge will be equal to the then current number of total User licenses, as established in point H above. Fees for other services will be charged on an as-quoted basis (see S.M.A.R.T.’s website for current fees www.smartdatabase.ca). S.M.A.R.T.’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
You agree to provide S.M.A.R.T. with complete and accurate billing and contact information. This information includes your legal company name (and number where applicable), street address, email address, and name, email address and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to these details. If the contact information you have provided is false or fraudulent, S.M.A.R.T. reserves the right to terminate your access to the Service in addition to any other legal remedies.
Unless S.M.A.R.T. in its discretion determines otherwise: (i) entities with headquarters and a majority of user’s that resident in Canada will be billed in Canadian Dollars and subject to CAN payment terms and pricing schemes (“CAN Customers”); and (ii) all other entities will be billed in U.S. dollars, Euros or local currency and be subject to payment terms and pricing schemes at the discretion of S.M.A.R.T.
J. Non-Payment and Suspension
In addition to any other rights granted to S.M.A.R.T. herein, S.M.A.R.T. reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes overdue and falls into arrears by more than 14 days. You will continue to be charged for User licenses during any period of suspension. S.M.A.R.T. reserves the right to impose a re-connection fee in the event you are suspended and thereafter request to regain access to the Service. You agree and acknowledge that S.M.A.R.T. has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more overdue.
K. Termination upon Expiration/Reduction in Number of User Licenses
This Agreement commences on the Effective Date. For S.M.A.R.T. User licenses, the term is indefinite and may be terminated at any time in S.M.A.R.T.’s sole discretion. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term at S.M.A.R.T.’s then current fees.
You can terminate this Agreement at any time. You can do this simply by stopping future payments to S.M.A.R.T., but we would appreciate if you could notify us by emailing firstname.lastname@example.org and let us know of your intentions.
In the event you intend to terminate the Service, you are responsible for copying any data from S.M.A.R.T. that you may need for the future, as S.M.A.R.T. cannot provide such data for you once the termination has taken place.
In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination, and you agree and acknowledge that S.M.A.R.T. has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
L. Termination for Cause
Any breach of your payment obligations or unauthorized use of the S.M.A.R.T. Technology or Service will be deemed a material breach of this Agreement. S.M.A.R.T., in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, S.M.A.R.T. may terminate a free account at any time in its sole discretion. You agree and acknowledge that S.M.A.R.T. has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
M. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. S.M.A.R.T. represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online S.M.A.R.T. help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
N. Mutual Indemnification
You shall indemnify and hold S.M.A.R.T., S.M.A.R.T.’s Group Companies and its licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including all legal fees and costs) arising out of or in connection with; (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that S.M.A.R.T. (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release S.M.A.R.T. of all liability and such settlement does not affect S.M.A.R.T.’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
S.M.A.R.T. shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, solicitors and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) arising out of or in connection with; (i) a claim alleging that the Service directly infringes a copyright or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by S.M.A.R.T. of its representations or warranties; or (iii) a claim arising from breach of this Agreement by S.M.A.R.T.; provided that you (a) promptly give written notice of the claim to S.M.A.R.T. (email@example.com); (b) give S.M.A.R.T. sole control of the defense and settlement of the claim (provided that S.M.A.R.T. may not settle or defend any claim unless it unconditionally releases you of all liability);
(c) provide to S.M.A.R.T. all available information and assistance; and (d) have not compromised or settled such claim. S.M.A.R.T. shall have no indemnification obligation, and you shall indemnify S.M.A.R.T. pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
O. Disclaimer of Warranties
S.M.A.R.T., S.M.A.R.T.’s Group Companies and its licensors make no representation, warranty, or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Service or any Content. S.M.A.R.T., S.M.A.R.T.’s Group Companies and its licensors do not represent or warrant that; (i) the use of the Service will be secure, timely, uninterrupted or error free or operate in combination with any other hardware, software, system or data; (ii) the Service will meet your requirements or expectations; (iii) any stored date will be accurate or reliable; (iv) the quality of any products, services, information, or other material purchased or obtained by you through the Service will meet your requirements or expectations; (v) errors or defects will be corrected; or (vi) the Service or the server(s) that make the Service available are free of viruses or other harmful components. The Service and all Content are provided to you strictly on an “as is” basis. All conditions, representations and warranties, whether expressed, implied, statutory, or otherwise, including without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non- infringement of third party rights, are hereby disclaimed to the maximum extent permitted by the applicable laws by S.M.A.R.T., S.M.A.R.T.’s Group Companies and its licensors.
P. Internet Delays
S.M.A.R.T.’s Services may be subject to limitations, delays, and other problems inherent in the use of the internet and other electronic communications. S.M.A.R.T. is not responsible for any delays, delivery failures, or other damage resulting from such problems.
Q. Limitation of Liability
If you are in breach of clause B of this Agreement including, but not limited to, you being a direct competitor of S.M.A.R.T., or are acting on behalf of one, then there shall be no limitations to your liability and as to what S.M.A.R.T. can claim from you.
In no other event shall either party’s aggregate liability exceeds the amounts actually paid by and/or due from you in the 12-month period immediately preceding the event giving rise to such claim. 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 this Service, including but not limited to the use or inability to use the Service, or for any content obtained from or through the Service, any interruption, inaccuracy, error or omission, regardless of cause in the content, 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.
R. Additional Rights
Certain countries, states, provinces, and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
S.M.A.R.T. may give notice by means of a general notice on the Service, electronic mail to your email address on record in S.M.A.R.T.’s account information, or by written communication sent by first class mail or pre- paid post to your address on record in S.M.A.R.T.’s account information. Such notice shall be deemed to have been given upon the expiration of; 48 hours after mailing or posting if sent by first class mail or pre-paid post; or 12 hours after sending (if sent by email).
You may give notice to S.M.A.R.T. (such notice shall be deemed given when received by S.M.A.R.T.) at any time by emailing us on firstname.lastname@example.org.
T. Modification to Terms
S.M.A.R.T. reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
U. Assignment and Change in Control
This Agreement may not be assigned by you without the prior written approval of S.M.A.R.T. (which shall not be unreasonable withheld), but may be assigned without your consent by S.M.A.R.T. to (i) any of S.M.A.R.T.’s Group Companies, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of S.M.A.R.T. directly or indirectly owning or controlling 50% or more of you shall entitle S.M.A.R.T. to terminate this Agreement for cause immediately upon written notice.
No text or information set forth on any other purchase order, pre-printed form or document (other than an Invoice, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and S.M.A.R.T. as a result of this Agreement or use of the Service. The failure of S.M.A.R.T. to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by S.M.A.R.T. in writing. This Agreement, together with any applicable Invoice, comprises the entire agreement between you and S.M.A.R.T. and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
Except as otherwise provided in this clause, this Agreement shall be governed by and construed in all respects in accordance with English Law.
Except as otherwise provided in this clause, the Parties hereby submit to the exclusive jurisdiction of the Courts of Canada.