1. SOFTWARE SERVICE.
2. USE OF SERVICE
b. User Responsibilities. User: (i) must keep its passwords secure and confidential; (ii) is solely responsible for User Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify SmarterSelect promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s user guide and applicable law.
3. WARRANTY DISCLAIMER.
THE SERVICE IS PROVIDED ‘AS IS’ WITHOUT WARRANTY. SMARTERSELECT DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE SMARTERSELECT TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, SMARTERSELECT DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. USER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
4. MUTUAL CONFIDENTIALITY.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, 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 (Confidential Information). SmarterSelect’s Confidential Information includes, without limitation, the Service, its user interface design and layout, and pricing information. User’s Confidential Information includes, without limitation, the User Data.
c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
5. SMARTERSELECT PROPERTY.
b. Restrictions. User may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service; or (vi) access the Service to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes.
7. LIABILITY LIMIT.
8. USER INDEMNITY.
If a third party claims against SmarterSelect that any part of the User Data violates a law or infringes or violates that party’s patent, copyright, or other right, User will defend SmarterSelect against that claim at User’s expense and pay all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by User, provided that SmarterSelect promptly notifies User of the claim in writing, cooperates with User in the defense, and allows User to solely control the defense or settlement of the claim.
9. GOVERNING LAW AND FORUM.
10. OTHER TERMS.
d. Feedback. If User provides feedback or suggestions about the Service, then SmarterSelect (and those it allows to use its technology) may use such information without obligation to User.
Last Revised November 25, 2019