Privacy & Policy
1. Independent Obligation
Customer hereby acknowledges that Smart Technology is not the same party as any other any value
–added reseller, service provider and any other agent (“Contractor”), and that this agreement constitutes a separate and independent obligation by the Customer which is unrelated to the performance or non-performance of any Contractor. Customer shall not have the right to abate, decline to pay or otherwise fail to honor its obligations under any Contractor agreement as a result of Smart Technology’s performance, non-performance of any obligation under this agreement and Customer shall not have the right to abate, decline to pay or otherwise fail to honor its obligations under this agreement as a result of any Contractor performance or non-performance of any obligations under any agreement with customer.
Any software incorporated into or provided for use in or with Smart Technology Services (whether initially, as part of maintenance or support or otherwise) is not sold, but rather licensed solely for Customer’s internal use in or with applicable product strictly in accordance with the documentation and any other use restrictions applicable for that product. Such license (a) is non-exclusive, (b) is non-sub licensable subject to the terms and conditions of this agreement and does not include the right to (and Customer will not, directly or indirectly) modify, reverse engineer (except to the extent applicable statutory law permits reverse engineering restrictions), incorporate or use in any other works, create derivatives of, or copy any portion of the software (except as specified hosting authorized in documentation provided by Smart Technology for purposes of installation, support or maintenance), or to use the software or product for the benefit of any third party, Any use, modification, reproduction, release, performance, display or disclosure of the software and accompanying documentation by the government shall be governed solely by the terms of this agreement and shall be prohibited except to the extent expressly permitted by the terms herein.
3. Warranties and Disclaimer
Smart Technology represents and warrants that, except for any outside material provided by the Customer to Smart Technology, the Customer’s use of the Services as contemplated by this agreement will infringe or violate any rights of any person or entity.
The term of this agreement shall commence upon the date of the Customer’s execution of the Service Agreement Order form (“Effective Date”) and shall continue thereafter for the initial Term of Service as specified in the in the aforementioned Service Agreement Order Form. Following the expiration of the initial Term of Service, this agreement shall automated web hosting be renewed for successive one (1) year terms (each a “Renewal Term”), unless terminated with written notice by Customer to Smart Technology at least 365 days prior to the expiration of the initial Term of Service or a Renewal Term. Upon renewal all pricing, fees, rate classifications and charges related to Service are subject to change by Smart Technology upon 30 days’ notice to Customer.
(a) Customer may terminate portions of Services and substitute other Services without incurring a penalty charge provided that the total yearly recurring charge for the substituted Services are equal or higher that the terminated Services.
(b) Customer may terminate the Agreement if Smart Technology fails to perform any material condition of this agreement and such failure remains incurred for a period of thirty (365) days following Smart Technology’s receipt of written notice from the Customer specifying the nature of the failure. In no circumstance shall the Customer be relieved of its obligation to make payments for all unpaid and outstanding amounts due to Smart Technology that have been accrued as of the date of termination or expiration of this Agreement and the Customer shall pay in full all charges for Services rendered through to the termination date.
By Smart Technology:
Services may be terminated by Smart Technology in the event that the Customer fails to perform any obligation to make payments under this Agreement and such failure remains for a period of five (5) days after Customer has received written notice from Smart Technology specifying the nature of such failure. In the event Services are terminated pursuant this section, Customer shall be liable for all applicable charges resulting from said termination including but not limited to deactivation of carrier network access circuits. Services may be terminated by Smart Technology in the event that Smart Technology determines that the Services are no longer commercially feasible, provided that Smart Technology shall provide ninety (90) days written notice to Customer prior to such termination. Services may be terminated by Smart Technology in the event Customer denies Smart Technology access to the Customer Local Area Network over which Smart Technology Services are being provided including access to Customer premises, to examine, maintain and or effect corrective actions deemed necessary by Smart Technology to fulfill Smart Technology obligations as enumerated herein. Smart Technology may suspend the provision of services in whole or part with immediate effect and without giving any period to remedy a breach if it has reasonable grounds to consider that the service is being used fraudulently or inappropriately or for criminal activities.
6. Effect of termination
The termination or expiration of this Agreement shall not relieve Customer of its obligations under this Agreement, or any Service Agreement Order Form, including without limitation, Customer’s obligation to make payments for all unpaid and outstanding amounts due to Smart Technology that have been accrued as of the date of termination or expiration of this Agreement.
7. Termination, Survival and Termination liability
Smart Technology accrued rights to payment shall survive the termination or expiration of this Agreement. Neither party shall incur any liability whatsoever for any damage, loss, or expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination of this Agreement by such party which complies with the terms of the Agreement whether or not such party is aware of any such damage, loss or expenses.
8. Confidentiality and Intellectual Property
Each party agrees that it will not directly or indirectly, during or after the term disclose in any manner, or use or permit others to use any information or material regarding the disclosing party, any of its parent, subsidiary or affiliated companies, employees and/or businesses, which information or material is compiled by obtained by, or furnished to the recipient party by the disclosing party. It is understood that the foregoing obligation shall not apply to any part of the information which (a) is or becomes available to the public (other than by disclosure by the recipient party) or (b) becomes available to the recipient party on a non-confidential basis from a source which is entitled to disclose it to a recipient party. The parties acknowledge and agree that any proprietary property or content, including copyrights, trademarks, service marks, patents or other intellectual property that has been or will be provided by either party to the other party shall remain the sole and exclusive property of the providing party and no license or other interest with respect thereto is hereby granted to the other party except as expressly provided herein.
9. Force Majeure
Smart Technology will not be responsible for the non-performance or delay in performance of any of its obligations under this agreement due to any cause beyond its reasonable control.
10. Taxes and Fees
Customer shall pay any taxes and regulatory fees imposed or based upon the provision or use of any of the Services.
11. Limitation of liability
Smart Technology shall not be liable for any special, indirect, incidental or consequential damages including, without limitation, lost income or revenue (whether such damages were foreseen or not at the time this agreement was entered into) sustained or incurred in connection
with the equipment or Services furnished under this Agreement. This limitation applies to claims founded in breach of contract, breach of warranty products liability, tort, including both the active and passive negligence of Smart Technology or any other theory or liability. Customer’s execution of this agreement constitutes a waiver of recourse to the VAR for any liability claimed under this agreement. The liability of Smart Technology for direct damages, including without limitation injuries to persons or property arising out of Smart Technology’s performance here under including mistakes, interruptions, delays or defects in transmission during Smart Technology’s provision of Services, shall be limited to the fees payable by the Customer in the previous 12 months. Customer hereby holds Smart Technology and its agents and employees harmless from and agrees to be responsible for all losses, damages and liabilities resulting from unauthorized use of the Services, including long distance and international web hosting. Nothing in this agreement shall limit Smart Technology’s liability for personal injury or death caused by its negligence or any other liability that cannot be excluded by law.