The SmartBOL Service is provided solely for the use of SmartBOL customers and other permitted entities. These Terms and Conditions together with any operating rules, policies, price schedules, or other supplemental documents expressly incorporated herein by reference and published from time to time by SmartBOL (collectively, the “Agreement”), constitutes the entire agreement between SmartBOL and you regarding the Services, and supersedes all prior agreements between the parties regarding the subject matter of this Agreement.
Certain areas of the SmartBOL Service may require registration for access. By registering with SmartBOL, you agree to provide accurate and current information about yourself as prompted by the SmartBOL Service registration form and maintain and promptly update your profile information to keep it accurate and current. If you provide any information that is inaccurate or not current, or SmartBOL has reasonable grounds to suspect that such information is inaccurate or not current, SmartBOL has the right to suspend or terminate the Services and/or your SmartBOL Service registration. By registering via the SmartBOL Service, an Account/User I.D. and Password may be provided to you. You are responsible for maintaining the confidentiality of any User I.D. and Password provided to you, and you are responsible for all activities that occur under your User I.D. and Password. You agree to (a) immediately notify SmartBOL of any unauthorized use of your User I.D. and Password, and (b) ensure that you exit from your SmartBOL Service session at the end of each visit.
SmartBOL may discontinue, suspend or modify the SmartBOL Service as per its own discretion. SmartBOL may block, terminate or suspend any user’s access to the SmartBOL Service at any time for violations of these terms and conditions, even if access continues to be allowed to others. In addition to the foregoing, you acknowledge that in the event that you fail to timely pay for your use of the Services, that SmartBOL may terminate this Agreement and your access to the Services without notice and that any data or information stored on the Web Site or through the Service may be deleted by SmartBOL after 7 days. In such event, you further agree that SmartBOL has no responsibility or liability whatsoever for the deletion or failure to store any information maintained or transmitted by the Service.
5. Consequences of Termination
Upon termination of this Agreement, or cancellation of the SmartBOL Service, all access to the Web Site or the Services will be terminated and all data will be deleted after 7 days. In addition, you shall (a) cease forthwith to use any SmartBOL trademarks or any imitations or approximations thereof;(b) not hold itself out as connected with SmartBOL; and (c) not divulge or use any confidential information of SmartBOL.
ADI Data International Inc. owns The SmartBOL Service, the Content, and the Services and its Content are protected by United States and international copyright, trademark and other laws. Specifically, SmartBOL does not convey to anyone, through allowing access to the SmartBOL Service, any ownership rights in the SmartBOL Services, Web Site or in any Content appearing on or made available through the SmartBOL Service.
You agree to pay all charges for your use of Services at the prices set forth in your service plan. SmartBOL reserves the right to charge value-added tax (“VAT”), sales or other taxes on the Services as it deems appropriate.
Payment of your account balance is due monthly and, if your account is a qualified business account and is approved by SmartBOL for corporate billing, charges will be accumulated, identified by a customer identification number and invoiced on a monthly basis. Each time you use the Services, or allow or cause the Services to be used, you agree and reaffirm that SmartBOL is authorized to charge your account as agreed upon. In the event that you default on your payment obligations to SmartBOL, SmartBOL reserves the right to suspend your account, with notice, including terminating access to the Services to any End Users. Such rights are in addition to and not in lieu of any other legal rights or remedies available to SmartBOL.
9. Disclaimer of Warranty
The SmartBOL services, web site and its content are provided “As is”. SmartBOL and its licensors disclaim any and all warranties, express or implied, including without limitation, the implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, regarding any such content and your abiliity or inability to use the SmartBOL services, web site and its content. SmartBOL makes no warranty that (I) the SmartBOL services or web site will meet your requirements, (ii) use of the SmartBOL services or web site will be uninterrupted, timely, secure, free of viruses, or error-free, (iii) the results that may be obtained from the use of the SmartBOL services or web site will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the SmartBOL services or web site will meet your expectations, or (v) any errors in the services will be corrected.
10. Limitation of Liability
Use of the SmartBOL services, web site and / or content is at your sole risk. SmartBOL will in no event be liable to you or any person or entity claiming through you for any indirect, consequential, incidental or other damages under any theory of law for (I) any errors in or the use of or inability to use the SmartBOL service and its content, (ii) unauthorized access to or alteration of your transmissions or data or (iii) any other matter relating to the SmartBOL service, including without limitation, damages for lost profits, business, data, or damage to any computer systems, even if you have advised SmartBOL of the possibility of such damages. Except for any indemnification obligations set forth in section 12 of this agreement, the entire liability of each party and such party’s licensors and service providers and your exclusive remedy with respect to the use of the services or any breach of this agreement are limited to the amount actually paid by you for access to and use of the services in the twelve (12) months preceding the date of your claim. You hereby release SmartBOL and each of its licensors and service providers from any and all obligations, liabilities and claims in excess of this limitation. Some jurisdictions do not allow implied warranties to be excluded or modified or liability to be limited, so not all of the above limitations may apply to you.
You hereby release, and agree to indemnify and hold harmless SmartBOL, its parent, affiliates and subsidiaries and their respective officers, directors, employees and agents from any and all claims, demands, causes of actions, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, arising out of your breach of this Agreement. SmartBOL hereby releases, and agrees to indemnify and hold harmless you and your parent, affiliates, subsidiaries and their respective officers, directors, employees and agents from any and all claims, demands, causes of action, liabilities, damages, costs and expenses, including reasonable attorneys’ fees, arising out of any claim that the SmartBOL Services or any SmartBOL software or technology infringe any third party’s intellectual property rights.
12. Links to other web sites
There may, from time to time, be links on the SmartBOL Service that allow you to visit the sites of third parties. SmartBOL controls neither the third-party sites nor the companies to whom they belong. SmartBOL makes no representations concerning the information provided or made available on such third-party sites nor the quality or acceptability of the products or services offered by any persons or entities referenced in any such sites. SmartBOL has not tested and makes no representations regarding the correctness, performance or quality of any software found at any such sites. You should research and assess the risks that may be involved in accessing and using any software on the Internet before using it.
You assume all responsibility for compliance with all laws and regulations of the United States and any other country from which you may access the SmartBOL Service regarding access, use, export, re-export and import of any Content appearing on or available through the SmartBOL Service.
The laws of the State of New Jersey shall govern this Agreement. User expressly agrees that any and all dispute relating to or arising out of this Agreement shall be subject to the exclusive jurisdiction of the appropriate courts of the State of New Jersey. User hereby expressly consents to the exercise of personal jurisdiction by the courts of the State of New Jersey.
All company and product names on the SmartBOL Service may be trademarks of the respective companies with which they are associated.
16. Force Majeure
SmartBOL shall not be liable for non-performance or delay in performance of its obligations should a force majeure event arise, that is, should there occur events beyond SmartBOL’s control such as to render the performance of its obligations impossible, dangerous or disproportionately onerous. Force majeure events include without limitation, catastrophic incidents, vandalism, lightning, power failure, fire, flood, earthquake, acts of nature, emergency, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, riots, curfew, strike or other labor disturbance, industrial disputes, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third-party services, virus attacks, worms, Trojans, spyware, adware or other malware, failure of third-party software (including, without limitation, e-commerce software, payment gateways, chat, statistics, or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed.
17. Service Level Agreement (“SLA”)
By using the Service, you hereby agree to the following SLA. SmartBOL’s guarantee is that the Service will be available to 95% of each calendar month. In order to request a SLA credit, you must contact SmartBOL within thirty (30) days after the last day of the calendar month in which the downtime occurred. E-mail notifications that are not sent within the first thirty (30) days of the month immediately following the downtime will not be eligible for SLA credits. The amount of the SLA credits is determined by the following table, based on the amount of uptime the Service has provided for the month in which a credit is requested. Network Uptime for the Month Percentage of Monthly Fee Credited* 95 – 100% 0% credit 85 – 94.9% 10% credit 75 – 84.9% 25% credit 65 -74.49% 50% credit 55.0 – 64.49% 75% credit 50% and below 100% credit * Upon proper request. SmartBOL will apply any applicable credit to your account within two billing cycles after SmartBOL receives the credit request. SmartBOL shall not be liable to reimburse in any form for failure to meet any of the guaranteed service level where such failure arises from any one or more of the following: (i) scheduled downtime, maintenance, or upgrades, (ii) emergency maintenance or upgrades, where such maintenance or upgrades are required by the occurrence of any events outside of SmartBOL’s control; (iii) failure of access to the Service, unless such failure is caused solely by SmartBOL, including failures due to third-party software not incorporated into SmartBOL’s Services, your abuse of resources, any acts or omissions of any person for whom SmartBOL is not responsible, or any causes whether similar or otherwise outside SmartBOL’s control. Credits are exclusive of any applicable taxes charged to you or collected by SmartBOL and are your sole and exclusive remedy with respect to any failure or deficiency in service or in the availability of the Service. This SLA does not relieve you from the obligation to pay your balance in full when it is due. SLA credits are always applied within two billing cycles after the month in which the downtime eligible for SLA credit occurs.
18. Complete Agreement
Except as expressly provided in a separate license, service or other written agreement between you and SmartBOL, this agreement constitutes the entire agreement between you and SmartBOL with respect to the use of the web site, and the services, information and content contained therein, and supersede all discussions, communications, conversations and agreements concerning the subject matter hereof.
19. Independent Contractors
SmartBOL is an independent contractor and nothing in this Agreement is intended to or will create any form of partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. You will have no authority to make or accept any offers or representations on SmartBOL’s behalf and you will not make any statement, whether on your own website or otherwise, to the contrary.
You shall not assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under it or purport to do any of the same without the prior written consent of SmartBOL.