Terms of Use

Introduction

Welcome and thank you for using SmartSuite’s products, services, mobile applications,  and  website, which we refer to as our “Services”.These Terms of Use (“Terms”) contain the terms under which SmartSuite Holdings, Inc., (referred to in this agreement as “SmartSuite”, “we”, “us” or “our”) and its affiliates provide their Services to you and describe how the Services may be accessed and used.You indicate your agreement to these Terms by clicking or tapping on a button indicating your acceptance of these Terms, by executing a document that references them, or by using the Services.If you will be using the Services on behalf of an organization, you agree to these Terms on behalf of that organization and you represent that you have the authority to do so. In such a case, “you” and “your” will refer to that organization.

1. Fees and Payments

1.1. Fees for Services.

You agree to pay to SmartSuite any fees for each Service you purchase or use (including any overage fees), in accordance with the pricing and payment terms presented to you for that Service. Where applicable, you will be billed using the billing method you select through your account plan and billing page. If you have elected to pay the fees by credit card, you represent and warrant that the credit card information you provide is correct and you will promptly notify SmartSuite of any changes to such information. Fees paid by you are non-refundable, except as provided in these Terms or when required by law.

1.2. Subscriptions.

SmartSuite Services are billed on a subscription basis (we call these “Subscriptions”). This means that you will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on the subscription plan you select when purchasing a Subscription. Your Subscription will automatically renew at the end of each billing cycle unless you cancel the auto-renewal through your account plan and billing page.  You may cancel the auto-renewal on your Subscription at any time, in which case your Subscription will continue until the end of that billing cycle before terminating.

1.3. Taxes.

Our Service prices do not include any taxes, levies, duties or similar governmental assessments of any nature such as value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”) unless otherwise indicated. You are responsible for paying Taxes associated with your purchase and keeping your billing information up to date.

1. (a) United States Sales Tax. If we have a legal obligation to pay or collect sales tax for which you are responsible, we will calculate the sales tax based upon the billing information we have about you and charge you that amount (which, if your billing information is incomplete or inaccurate, may be the highest prevailing rate then in effect), unless you provide us with a valid tax exemption certificate acceptable to the appropriate taxing authority.
   1. If you provide us with a tax exemption certificate, you represent and warrant that it accurately reflects your tax status and that you will keep such certificate current and accurate.
   2. If we subsequently determine in our sole discretion that your tax exemption certificate is valid, we will refund the sales tax collected.

1. (b) Non-United States Sales Tax. If applicable, we will charge you VAT, GST or any other sales, consumption or use taxes that arise in connection with your purchases of SmartSuite products unless you provide us with a tax identification number that entitles you to an exemption, a valid tax exemption certificate or other documentary proof issued by an appropriate taxing authority that tax should not be charged. If you are located in a jurisdiction with multiple sales, consumption or use taxes, we may charge you the highest prevailing rate if your billing information is incomplete or inaccurate.

If you are required by law to withhold any Taxes from your payments to SmartSuite, you must provide us with an official tax receipt or other appropriate documentation to support such payments.

1.4. Price Changes.

SmartSuite may change the fees charged to you for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. SmartSuite will provide you with advance notice of any change in fees.

1.5. Overage Fees.

Subscription Plans may set allotments for the usage of designated Service aspects. Use of Service aspects in excess of a Subscription Plan’s designated allotment may result in overage fees, as specified in the plan. Unless otherwise stated, any overage fees incurred by you will be billed in arrears or charged automatically via the payment method associated with your SmartSuite account. Overage fees which remain unpaid for 30 days after being billed are considered overdue. Failure to pay overage fees when due may result in the applicable Service being limited, suspended, or terminated (subject to applicable legal requirements), which may result in a loss of your data associated with that Service.

2. Privacy

2.1. Privacy.

In the course of using the Services, you may submit content to SmartSuite (including your personal data and the personal data of others) or third parties may submit content to you through the Services (all of the above will be referred to as your “Content”). We know that by giving us your Content, you are trusting us to treat it appropriately. SmartSuite’s Privacy Policy, together with any Service-specific privacy notices or statements (collectively, “SmartSuite privacy policies”), detail how we treat your Content and we agree to adhere to those SmartSuite privacy policies. You in turn agree that SmartSuite may use and share your Content in accordance with the SmartSuite privacy policies and applicable data protection laws.

2.2. Confidentiality.

SmartSuite will treat your Content as confidential information and only use and disclose it in accordance with these Terms (including the SmartSuite privacy policies). However, your Content is not regarded as confidential information if such Content:

1. (a) is or becomes public (other than through breach of these Terms by SmartSuite);
2. (b) was lawfully known to SmartSuite before receiving it from you;
3. (c) is received by SmartSuite from a third party without knowledge of breach of any obligation owed to you;
   
4. (d) was independently developed by SmartSuite without reference to your Content. SmartSuite may disclose your Content when required by law or legal process, but only after SmartSuite, if permitted by law, uses commercially reasonable efforts to notify you to give you the opportunity to challenge the requirement to disclose.

2.3. Security.

SmartSuite will store and process your Content in a manner consistent with industry security standards. SmartSuite has implemented technical, organizational, and administrative systems, policies, and procedures designed to help ensure the security, integrity, and confidentiality of your Content and to mitigate the risk of unauthorized access to or use of your Content.

If SmartSuite becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, personal data related to your account (“Security Incident”), SmartSuite will take reasonable steps to notify you without undue delay, but in any event within 72 hours of becoming aware of the Security Incident. SmartSuite will also reasonably cooperate with you with respect to any investigations relating to a Security Incident with preparing any required notices, and provide any other information reasonably requested by you in relation to any Security Incident, where such information is not already available to you in your account or online through updates provided by SmartSuite.

3. Your Content

3.1. You Retain Ownership of Your Content.

You retain ownership of all of your intellectual property rights in your Content. SmartSuite does not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.

3.2. Limited License to Your Content.

You grant SmartSuite a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit your Content, but only for the limited purposes of providing the Services to you and as otherwise permitted by the SmartSuite privacy policies. This license for such limited purposes continues even after you stop using our Services, with respect to aggregate and de-identified data derived from your Content and any residual backup copies of your Content made in the ordinary course of SmartSuite’s business. This license also extends to any trusted third parties we work with to the extent necessary to provide the Services to you. If you provide SmartSuite with feedback about the Services, we may use your feedback without any obligation to you.

3.3. Customer Lists.

SmartSuite may identify you (by name and logo) as a SmartSuite Services customer on the SmartSuite website and on other promotional materials. Any goodwill arising from the use of your name and logo will inure to your benefit.

3.4. Copyright Claims (DCMA Notices).

SmartSuite responds to notices of alleged copyright infringement in accordance with the U.S. Digital Millennium Copyright Act (DMCA). If you believe that your work has been exploited in a way that constitutes copyright infringement, you may notify SmartSuite’s agent for claims of copyright infringement at legal@smartsuite.com

3.5. Other IP Claims.

SmartSuite respects the intellectual property rights of others, and we expect our users to do the same. If you believe a SmartSuite user is infringing upon your intellectual property rights, you may report it to us at legal@smartsuite.com. Claims of copyright infringement should follow the DMCA process outlined in these Terms, or any equivalent process available under local law.

4. SmartSuite IP

4.1. SmartSuite IP.

Neither these Terms nor your use of the Services grants you ownership in the Services or the content you access through the Services (other than your Content). Except as permitted by SmartSuite’s Brand and Trademark Use Policy, these Terms do not grant you any right to use SmartSuite’s trademarks or other brand elements.

If you submit any feedback or suggestions to us regarding our Services, we may use and share them for any purpose without any compensation or obligation to you.

5. User Content

5.1. User Content.

The Services display content provided by others that is not owned by SmartSuite. Such content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for your own Content and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Services. SmartSuite is not responsible for any actions you take with respect to your Content, including sharing it publicly. Please do not use content from the Services unless you have first obtained the permission of its owner, or are otherwise authorized by law to do so.

5.2. Content Review.

You acknowledge that, in order to ensure compliance with legal obligations, SmartSuite may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates these Terms (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we believe violates the law or these Terms. However, SmartSuite otherwise has no obligation to monitor or review any content submitted to the Services.

5.3. Third Party Resources.

SmartSuite may publish links in its Services to internet websites maintained by third parties. SmartSuite does not represent that it has reviewed such third party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with the Services are the property of their respective owners.

6. Account Management

6.1. Keep Your Password Secure.

If you have been issued an account by SmartSuite in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not SmartSuite, are responsible for any activity occurring in your account (other than activity that SmartSuite is directly responsible for which is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify SmartSuite immediately. Accounts may not be shared and may only be used by one individual per account.

6.2. Keep Your Details Accurate.

SmartSuite occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate.

6.3. Remember to Backup.

You are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, SmartSuite will not be liable for any failure to store, or for loss or corruption of, your Content.

6.4. Account Inactivity.

SmartSuite may terminate your account and delete any Content contained in it if there is no account activity (such as a log in event or payment) for over 6 months. However, we will attempt to warn you by email before terminating your account to provide you with an opportunity to log in to your account so that it remains active.

6.5. Customer Success.

SmartSuite may assign you a customer success manager (“CSM”). The CSM may review your use of the Services and your Content to help you to more effectively use the Services, including by providing reporting and usage insight.

7. User Requirements

7.1. Legal Status.

If you are an individual, you may only use the Services if you have the power to form a contract with SmartSuite. If you do not have the power to form a contract, you may not use the Services. If you are not an individual, you warrant that you are validly formed and existing under the laws of your jurisdiction of formation, that you have full power and authority to enter into these Terms, and that you have duly authorized your agent to bind you to these Terms.

7.2. Minors.

“Minors” are individuals under the age of 13 (or a higher age as provided in certain countries and territories). None of the Services are intended for use by Minors. By using the Services, you represent and warrant that you are not a Minor.

7.3. Embargoes.

You may only use the Services if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by United States or other applicable law from receiving the Services, or are on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals, you are not permitted to purchase any paid Services from SmartSuite. You will ensure that:

1. (a) your end users do not use the Services in violation of any export restriction or embargo by the United States; and
2. (b) you do not provide access to the Services to persons or entities on any of the above lists.
   

8. Acceptable Uses

8.1. Legal Compliance.

You represent and warrant that you will comply with all laws and regulations applicable to your use of the Services.

8.2. Your Responsibilities.

You are responsible for your conduct, Content, and communications with others while using the Services. You must comply with the following requirements when using the Services:

1. (a) You may not purchase, use, or access the Services for the purpose of building a competitive product or service or for any other competitive purposes.
2. (b) You may not misuse our Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions that we provide.
3. (c) You may not circumvent or attempt to circumvent any limitations that SmartSuite imposes on your account.
4. (d) Unless authorized by SmartSuite in writing, you may not probe, scan, or test the vulnerability of any SmartSuite system or network.
5. (e) Unless authorized by SmartSuite in writing, you may not use any manual or automated system or software to extract or scrape data from the websites or other interfaces through which we make our Services available.
6. (f) Unless permitted by applicable law, you may not deny others access to, or reverse engineer, the Services, or attempt to do so.
7. (g) You may not transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services.
8. (h) You may not engage in abusive or excessive usage of the Services, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users. SmartSuite will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to SmartSuite.
9. (i) You may not use the Services to infringe the intellectual property rights of others, or to commit an unlawful activity.
10. (j) Unless authorized by SmartSuite in writing, you may not resell or lease the Services.
11. (k) If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless SmartSuite has agreed with you otherwise. You may not use the Services in a way that would subject SmartSuite to those industry-specific regulations without obtaining SmartSuite’s prior written agreement.
12. (l) You may not register accounts by “bots” or other automated methods.
    

9. Suspension and Termination of Services

9.1. By You.

You can terminate your Subscription and delete your account at any time through your account plan and billing page. Such termination and deletion will result in the deactivation or disablement of your account and access to it, and the deletion of content you entered through use of the Services. Terminations are confirmed immediately and you will not be charged again for that Subscription unless you purchase a new one. If you terminate a Subscription in the middle of a billing cycle, you will not receive a refund unless you are terminating these Terms for any of the following reasons: (a) we have materially breached these Terms and failed to cure that breach within 30 days after you have so notified us in writing; (b) a refund is required by law.

9.2. By SmartSuite.

SmartSuite may terminate your Subscription at the end of a billing cycle by providing at least 30 days’ prior written notice to you. SmartSuite may terminate your Subscription for any reason by providing at least 90 days’ written notice to you and will provide a pro rata refund for any period of time you did not use in that billing cycle. SmartSuite may suspend or terminate your Subscription for any of the following reasons: (a) you have materially breached these Terms and failed to cure that breach within 30 days after SmartSuite has so notified you in writing; (b) you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days; or (c) you fail to pay fees for 30 days past the due date. Additionally, SmartSuite may limit, suspend, or terminate the Services to you: (i) if you fail to comply with these Terms, (ii) if you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services; or (iii) if we are investigating suspected misconduct by you. Also, if we limit, suspend, or terminate the Services you receive, depending upon the reason, we will endeavor to give you advance notice and an opportunity to obtain a copy of your Content from that Service. SmartSuite has no obligation to retain your Content upon termination of the applicable Service.

9.3. Further Measures.

If SmartSuite stops providing the Services to you because you repeatedly or egregiously breach these Terms, SmartSuite may take measures to prevent the further use of the Services by you, including blocking your IP address.

10. Changes and Updates

10.1. Changes to Terms.

SmartSuite may change these Terms at any time for a variety of reasons, such as to reflect changes in applicable law or updates to Services, and to account for new Services or functionality. The most current version will always be posted on the SmartSuite website. If an amendment is material, as determined in SmartSuite’s sole discretion, SmartSuite will notify you by email. Notice of amendments may also be posted to SmartSuite’s blog or upon your login to your account. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require SmartSuite to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not want to agree to any changes made to the terms for a Service, you should stop using that Service, because by continuing to use the Services you indicate your agreement to be bound by the updated terms.

10.2. Changes to Services.

SmartSuite constantly changes and improves the Services. SmartSuite may add, alter, or remove functionality from a Service it provides to you at any time without prior notice. SmartSuite may also limit, suspend, or discontinue a Service provided to you at its discretion. If SmartSuite discontinues a Service, we will give you reasonable advance notice to provide you with an opportunity to obtain a copy of your Content from that Service. SmartSuite may remove content from the Services it provides you at any time in our sole discretion, although we will endeavor to notify you before we do that if it materially impacts you and if practicable under the circumstances.

10.3. Downgrades.

Downgrading your account plan may cause the loss of content, features, functionality, or capacity of your account.

11. Disclaimers and Limitations of Liability

11.1. Disclaimers.

While it is in SmartSuite’s interest to provide you with a great experience when using the Services (and we love to please our customers), there are certain things we do not promise about them. We try to keep our online Services up, but they may be unavailable from time to time for various reasons. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ANY GUIDANCE OR RECOMMENDATIONS THEREIN ARE PROVIDED “AS IS” AND SMARTSUITE DOES NOT MAKE WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR ANY REPRESENTATIONS REGARDING AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES.

11.2. Exclusion of Certain Liability.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, SMARTSUITE, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF SMARTSUITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

11.3. Limitation of Liability.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF SMARTSUITE, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY YOU TO SMARTSUITE FOR USE OF THE SERVICES AT ISSUE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) US$500.00.

11.4. Consumers.

We acknowledge that the laws of certain jurisdictions provide legal rights to consumers that may not be overridden by contract or waived by those consumers. If you are such a consumer, nothing in these Terms limits any of those consumer rights.

11.5. Indemnification.

If you are a business, you will indemnify and hold harmless SmartSuite and its affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) (“Indemnification Amounts”) arising out of a third party claim regarding or in connection with your or your end users’ use of the Services or breach of these Terms, to the extent that such liabilities, damages and costs were caused by you or your end users.If you are any kind of user, you will indemnify and hold Indemnified Entities harmless from any Indemnification Amounts arising out of a breach of your obligation in Section 1.3 to ensure your tax exemption certificate, if any, accurately reflects your current tax status.

12. Contracting Entity

12.1. Who you are contracting with.

The Services are provided by, and you are contracting with, SmartSuite Holdings, Inc.

12.2. SmartSuite Holdings, Inc.

For any Service provided by SmartSuite Holdings, Inc. the following provisions will apply to any terms governing that Service:

• Contracting Entity. References to “SmartSuite”, “we”, “us”, and “our” are references to SmartSuite Holdings, Inc., located at 3857 Birch Street, #945 Newport Beach, CA 92660, USA.
• Governing Law. Those terms are governed by the laws of the State of Delaware (without regard to its conflict of laws provisions).
• Jurisdiction. Except if prohibited by applicable law, each party submits to the exclusive jurisdiction of the state and federal courts located in Delaware with respect to the subject matter of those terms.

13. Other Terms

13.1. Assignment.

You may not assign these Terms without SmartSuite’s prior written consent, which may be withheld in SmartSuite’s sole discretion. SmartSuite may assign these Terms at any time without notice to you.

13.2. Entire Agreement.

These Terms (including any Additional Terms) constitute the entire agreement between you and SmartSuite, and they supersede any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms, and are void.

13.3. Independent Contractors.

The relationship between you and SmartSuite is that of independent contractors, and not legal partners, employees, or agents of each other.

13.4. Interpretation.

The use of the terms “includes”, “including”, “such as”, and similar terms, will be deemed not to limit what else might be included.

13.5. No Waiver.

A party’s failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later.

13.6. Precedence.

To the extent any conflict exists, the Additional Terms prevail over the Terms with respect to the Services to which the Additional Terms apply.

13.7. Severability.

If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.

13.8. Third Party Beneficiaries.

There are no third party beneficiaries to these Terms.

13.9. Survival.

The following sections will survive the termination of these Terms: 1, 2, 3.2, 9, 11, 12, and 13.