By using the Services, you acknowledge and agree that you shall comply with this Agreement and any additional terms and conditions that we may provide to you in connection with the Services. Use of the Services is limited to users who are thirteen (13) years of age or older. By using the Services, you represent and warrant to us that: (a) you are at least thirteen (13) years of age or older; (b) you have read and understand the terms and conditions of this Agreement and agree to be bound by its terms and conditions; (c) if you are entering into this Agreement on behalf of your employer, you have been legally authorized by your employer to enter into this Agreement and have the authority to bind your employer to this Agreement; and (d) your use of the Services does not violate any law, rule or regulation to which you are subject, including any terms, conditions or requirements promulgated by any Third Party Services (as defined below). Certain features of the Services may be subject to heightened age and/or other eligibility requirements and restrictions. If you are a user between the ages of thirteen and eighteen (18), please review this Agreement with your parent or guardian. Your parent or guardian should agree to this Agreement on your behalf and parental discretion is advised for all users under the age of eighteen (18).
If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website and Services or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
Content Provider Ownership
Except for the rights granted to SmartNoter and users of the Services under this Agreement and any applicable license agreement, you retain all right, title and interest in your Provider Content and your Provider Content Information and any intellectual property rights therein. For purposes of this Agreement, (i) “Provider Content” shall mean any and all audio-visual and audio-only content, applications, educational materials, tests, quizzes, movies, interactive tools, graphics, images, tools and information you provide to us, upload, attach or make available on or through the Services, whether by means of download, stream, link or otherwise and (ii) “Provider Content Information” shall mean the descriptions, format data, descriptive images and other information related to Provider Content, which you provide to us or make available in connection with your use of the Services, whether by means of download, stream, link or otherwise.
As between you and SmartNoter, SmartNoter owns the Services (excluding your Provider Content and Provider Content Information), including all of the content (e.g., audio-visual content, photographs, audio, images, illustrations, graphics, video, copy, software, etc.), code, data and materials displayed on or otherwise made available through the Services, including as contained in any advertisements and the “look and feel” of such content (collectively, “SmartNoter Content”). This includes all intellectual property and proprietary rights in such SmartNoter Content. When you use the Services, or download or access materials from the Services, you do not acquire any ownership of any such SmartNoter Content. Unless otherwise permitted in this Agreement, the Services are only for your personal, non-commercial use. You may not make any commercial use of the Services, or any SmartNoter Content made available on the Services, unless you have received our prior written permission. SmartNoter grants to you a non-exclusive, non-assignable, nontransferable and limited right and license to use the Services, solely in accordance with the terms and conditions of this Agreement.
The trademarks, logos, service marks, and trade names (collectively the “Trademarks”) displayed on the Services are registered and unregistered Trademarks of SmartNoter and may not be used in any manner that is likely to cause customer confusion, or that disparages or discredits SmartNoter. You do not receive, by implication or otherwise, any license or right to use any Trademark or SmartNoter Content displayed on the Services without our prior written permission, which may be withheld in our sole discretion.
As between you and SmartNoter, SmartNoter owns any and all data, statistics, content, play histories, and information, in any form or medium, that is collected, downloaded, uploaded or otherwise received, directly or indirectly, from you, any user or Content Provider by or through the Services, including any data, content, and information derived or processed by the Services based on your, another user’s or a Content Provider’s use of and access to the Services (collectively “Data”). No rights or licenses are granted to you to use the Data under this Agreement and SmartNoter reserves all rights, title, and interest therein.
Except as we expressly permit (or, in the case of Provider Content, the applicable Content Provider permits), you may not download, display, copy, distribute, modify, perform, transfer, create derivative works from, sell, or otherwise exploit any Provider Content, Provider Content Information or SmartNoter Content on the Services; provided, however, if you are the owner of the Provider Content and or Provider Content Information, this provision shall not restrict your right to exploit or use your Provider Content and/or Provider Content information. The framing or scraping of or in-line linking to the Services or any Provider Content, Provider Content Information or SmartNoter Content, and/or the use of webcrawler, spidering or other automated means to access, copy, index, process and/or store any Provider Content, Provider Content Information or SmartNoter Content, other than as expressly authorized by us, is prohibited. You further agree to abide by exclusionary protocols (e.g., Robot.txt, Automated Content Access Protocol (ACAP), etc.) used in connection with the Services. Additionally, you are not permitted to alter, delete or conceal in any manner any copyright, Trademark, or other notices contained on the Services, including, without limitation, notices on any Provider Content, Provider Content Information or SmartNoter Content you transmit, display, print, stream or reproduce from the Services. Any unauthorized or prohibited use of any Provider Content, Provider Content Information or SmartNoter Content may violate or infringe copyright and other laws of the United States and other countries, as well as applicable local and state laws, and may subject you to liability for such unauthorized use.
We have the right to:
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website and Services. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
However, we do not undertake to review all material before it is posted on the Website and Services, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
We require users to respect our copyrights, trademarks, and other intellectual property rights and shall enforce the same. We likewise respect the intellectual property of others. If you believe that the Services contain elements that infringe your copyrights in your work, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent (as set forth below) with the following information in writing (see 17 U.S.C. 512(c)(3) for further details):
Written notification of claimed infringement must be submitted to the following Designated Agent:
Attention: DMCA Copyright Agent
Email Address of Designated Agent: DMCA@SmartNoter.com
For clarity, only DMCA notices should be sent to the Designated Agent and any other feedback, comments, requests for technical support, and other communications should be directed to our customer service by sending an email to support@SmartNoter.com. You acknowledge and agree that if you fail to comply with all of the requirements of this Section 4, your DMCA notice may not be valid.
If you believe that your content was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to applicable law, to make such content available to SmartNoter for use on the Services, you may send a counter-notice containing the following information to our Copyright Agent:
If a counter-notice is received by our Designated Agent, SmartNoter may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider or the user, the removed content may be replaced, or access to it restored, in ten to fourteen (10-14) business days or more after receipt of the counter-notice, at SmartNoter’s sole discretion.
We reserve the right to terminate the User Accounts of repeat infringers.5. User Conduct
We want to keep the Services safe and enjoyable for everyone and the use of the Services for unlawful or harmful activities is expressly prohibited. You agree that, while using the Services, you shall not:
SmartNoter assumes no responsibility for monitoring the Services for inappropriate, false, incorrect, misleading, deceptive or unlawful content, information, materials or conduct posted by or on behalf of a third party.
If at any time SmartNoter chooses in its sole discretion to monitor the Services, SmartNoter nonetheless assumes no responsibility for Provider Content, Provider Content Information or User Postings (as hereafter defined), assumes no obligation to modify or remove any Provider Content, Provider Content Information or User Postings, and no responsibility for the conduct of any user. SmartNoter reserves the right to investigate and take appropriate legal action against anyone who, in SmartNoter’s sole discretion, violates, or is suspected of violating, this Section 5, including, without limitation, reporting you to law enforcement authorities.
The Services may provide you with an opportunity to submit, post, email or otherwise make available comments, reviews and feedback via the Services (collectively, “User Postings”). We do not acquire any ownership rights in the User Postings, other than the license you grant to us herein. You also represent that you own the User Posting posted by you or otherwise have the right to grant the rights, licenses and privileges described in this Agreement. You acknowledge that we may use them throughout the world for any purpose, in any form or format, on or through any media now known or hereafter developed, including the right to modify, edit, create derivative works and translate such User Postings. We may do so without notice to you and without paying any compensation to you. All User Postings are and will be considered non-confidential and non-proprietary. User Postings do not reflect the views of SmartNoter, and you understand that by using the Services, you may be exposed to other people’s User Postings that could be offensive, indecent or objectionable and, as such, SmartNoter does not guarantee the accuracy, integrity, quality or content of any User Postings. We have the right, but not the obligation, to review any User Posting and to delete, remove, move, edit or reject, without notice to you, for any reason or for no reason. Under no circumstances shall SmartNoter be liable in any way for User Postings, including, without limitation, errors or omissions in any User Postings, or any loss or damage of any kind incurred as a result of any User Postings made available.
If you elect to offer or make available Provider Content on or through the Services, you shall be treated as a “Content Provider” and agree to do so solely in accordance with the terms and conditions of this Agreement. Any and all other uses are strictly prohibited.
By submitting, attaching, making available and offering your Provider Content on the Services, you hereby grant to SmartNoter a non-exclusive, worldwide, right and license to copy, transmit, perform, display, modify (solely for formatting purposes), capture, translate, distribute, make available and use your Provider Content and Provider Content Information (including all intellectual property rights embodied therein) on the Services; and in connection with the operation, marketing, and/or promotion of your Provider Content (including by capturing and displaying images of your Provider Content) and the Services.
Uploading Provider Content; Compliance with Laws; Responsibility for Provider Content
By submitting, making available, uploading and offering your Provider Content and Provider Content Information on the Services, you represent, warrant and covenant that you have obtained and shall maintain all necessary rights, licenses, permissions and clearances in order to make your Provider Content and Provider Content Information available and your provision of your Provider Content and Provider Content Information shall not violate any applicable laws, rules or regulations (including any laws regarding content and age rating, and the export of data or software to and from all relevant countries) or infringe on the intellectual property rights of any third party. You are responsible for determining and disclosing the countries in which your Provider Content may legally be made available. You must ensure that your Provider Content and Provider Content information comply with all applicable country specific laws and regulations. You further represent, warrant and covenant that your Provider Content shall not contain any viruses, malicious code, trojan horse, worm, time bomb, self-help code, back door or other software code or routine designed to (or resulting in): (i) damage, destroy or alter any software, hardware, or network; (ii) reveal, damage, destroy or alter any data; (iii) disable any computer program automatically; or (iv) permit unauthorized access to any software, hardware, or network. You, not SmartNoter, shall be solely responsible for your Provider Content and Provider Content Information and the consequences of submitting, attaching, making available and offering your Provider Content and Provider Content Information on the Services.
Right to Reject Content; Content Removal
SmartNoter shall have the right, in its sole and absolute discretion, to reject, remove or disable access to any of your Provider Content for any reason. You may elect to have any of your Provider Content removed from the Services by clicking on the Provider Content removal links associated with the applicable Provider Content. SmartNoter will remove your Provider Content from the Services as requested within thirty (30) days after receipt of your request and no longer display your Provider Content on the Services.
Provider Content Placement
Unless otherwise agreed in writing, SmartNoter reserves the right, in its sole discretion, to determine whether or not and when to display your Provider Content in the Services and to display your Provider Content in the Services in any order or level of prominence as it deems appropriate in its sole discretion.
Provider Content Placement
You are solely responsible for support and maintenance of your Provider Content. Unless otherwise agreed, SmartNoter shall not have any obligation to provide support or maintenance for any of your Provider Content. You are solely responsible for ensuring your Provider Content’s compatibility with the Services and end users’ devices. You must clearly communicate any compatibility requirements which are necessary for users to use your Provider Content.
From time to time, you may choose to communicate with, interact with, or obtain Third Party Services from our advertisers, sponsors, or other promotional partners (collectively, “Advertisers”) found on or through the Services or via a hyperlinked website, service or platform. All such communication, interaction and participation is strictly and solely between you and such Advertisers and we shall not be responsible or liable to you in any way in connection with these activities or transactions (including, without limitation, any representations, warranties, covenants, contracts or other terms or conditions that may exist between you and the Advertisers or any goods or services you may purchase or obtain from any Advertiser).
We may make available certain fee-based transactions, content and other e-commerce services, including, without limitation, the QueryCaps and QuikQuiz services, branding services for Content Providers, subscriptions, and additional enhancements and questionnaires associated with Provider Content (“Fee-Based Services”). Certain Fee-Based Services may utilize third party service providers (e.g., Apple, etc.), and all purchases made through these third party service providers are subject to their respective terms and conditions, and in the event of a conflict between such third party’s terms and conditions and this Agreement, the terms and conditions of the third party service provider shall govern and control. SmartNoter is not responsible and has no liability whatsoever for goods or services you obtain through our third party service providers or other websites or web pages. We encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online transaction with any of these third parties. You agree to pay in full the prices for any purchases made using the User Account registered to you, including all applicable taxes.
Payment Method and Terms
The Services may accept certain methods of payment which will be indicated at the time of purchase as forms of payment (each, an “Authorized Payment Method”), subject to certain restrictions, including, without limitation, territory restrictions, bank/payment card restrictions, spending limits, third party service provider restrictions or otherwise, which may prevent the processing of your order. If a transaction has been declined online due to payment card issues, please ensure all data is correct and resubmit. If the transaction is not accepted online, you will be unable to use that card for your transaction and should use another Authorized Payment Method. If a payment card company is being used for a transaction, SmartNoter may obtain a pre-approval from the applicable payment card company for an amount up to the amount of the order. All purchases are final once you click the “Submit” or similar button/link and billing to your payment card occurs at such time or shortly thereafter. If payment is not received by us from your credit card issuer, you agree to promptly pay all amounts due upon demand by us. SmartNoter reserves the right to change any and all prices for any products or services at any time, for any reason.
Additional Terms and Conditions
SmartNoter may revise any or all of the fees and prices associated with the Fee-Based Services at any time for any or no reason. Further, while we try to be as accurate as possible when describing and displaying our products and services, SmartNoter does not guarantee that product or service descriptions or other content, services or products will be available, accurate, complete, reliable, current or error-free. Descriptions and images of, and references to, products or services on or in connection with the Fee-Based Services do not imply SmartNoter’s endorsement of such products or services. Despite our best efforts, some products or services may be mispriced. If the correct price of a product or service sold by SmartNoter is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or finalizing your reservation, or cancel your order or reservation and notify you of such cancellation.
If you have a complaint or dispute about a certain charge, or about a certain feature or product made available on or in connection with the Fee-Based Services, you must promptly notify SmartNoter’s customer service of such complaint or dispute by sending a detailed email to billing@SmartNoter.com
THIRD PARTY PRODUCTS AND SERVICES
WE ARE NOT RESPONSIBLE AND HAVE NO LIABILITY WHATSOEVER FOR GOODS OR SERVICES YOU OBTAIN THROUGH THIRD PARTY SERVICE PROVIDERS OR OTHER WEBSITES, WEB PAGES, APPLICATIONS AND PLATFORMS (EVEN IF ACCESSED WITHIN, THROUGH OR IN CONNECTION WITH THE SERVICES), AND ANY SUCH PURCHASES ARE SUBJECT TO THEIR RESPECTIVE TERMS AND CONDITIONS OF USE. YOU ACKNOWLEDGE AND AGREE THAT PRODUCT/SERVICE SPECIFICATIONS AND OTHER INFORMATION HAVE EITHER BEEN PROVIDED BY THE APPLICABLE THIRD PARTY VENDORS OR COLLECTED FROM PUBLICLY AVAILABLE SOURCES AND WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR RELIABILITY OF ANY SUCH INFORMATION. ACCORDINGLY WE ENCOURAGE YOU TO MAKE WHATEVER INVESTIGATION YOU FEEL NECESSARY OR APPROPRIATE BEFORE PROCEEDING WITH ANY TRANSACTION WITH ANY OF THESE THIRD PARTIES AS SAME IS CONDUCTED AT YOUR SOLE RISK. FURTHER, WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE SECURITY OF ANY INFORMATION (INCLUDING, WITHOUT LIMITATION, CREDIT CARD AND OTHER PERSONAL INFORMATION) YOU MIGHT BE REQUESTED TO GIVE ANY SUCH THIRD PARTY, AND YOU IRREVOCABLY WAIVE ANY CLAIM AGAINST US OR OUR AFFILIATES WITH RESPECT TO ANY SUCH TRANSACTION. WE ARE NOT RESPONSIBLE FOR ASSISTING YOU IN CORRECTING ANY PROBLEM YOU MAY EXPERIENCE WITH GOODS AND SERVICES PURCHASED THROUGH A THIRD PARTY SERVICE PROVIDER, EVEN IF THE GOODS OR SERVICES ARE ACCESSED WITHIN, THROUGH OR IN CONNECTION WITH THE SERVICES. WE CANNOT ENSURE THAT YOU WILL BE SATISFIED WITH ANY PRODUCTS OR SERVICES THAT YOU PURCHASE FROM ANY THIRD-PARTY OPERATIONAL SERVICE PROVIDER AS THOSE ARE OWNED AND OPERATED BY INDEPENDENT ENTITIES. CUSTOMER SERVICE ISSUES RELATED TO GOODS OR SERVICES SHOULD BE DIRECTED TO THE RELEVANT THIRD PARTY OPERATIONAL SERVICE PROVIDER.
Certain Services may require data access, and the provider of data access (e.g., network operator, wireless carrier, etc.) for your device may charge you data access fees in connection with your use of such including, without limitation, wireless carrier messaging and other communication, messaging and data fees and charges. SmartNoter will not be responsible for any such data access fees and charges in connection with your use of any of the Services. Further, the use or availability of certain Services may be prohibited or restricted by your wireless carrier and/or data access provider, and not all Services may work with all wireless carriers, networks, platforms, services or devices.
This Agreement, and any rights, licenses and privileges granted herein, may not be transferred or assigned by you, but may be assigned or transferred by SmartNoter without restriction, notice or other obligation to you.
We may modify this Agreement from time to time, and at any time, without notice to you, for any reason, in our sole discretion. We may post or display notices of material changes on the Services and/or notify you via other electronic means. The form of such notice is at our discretion. Once we post or make them available on the Services, these changes become effective immediately and if you use the Services after they become effective it will signify your agreement to be bound by the changes. We recommend that you check back frequently and review this Agreement regularly so you are aware of the most current rights and obligations that apply to you.
You agree to indemnify, defend and hold SmartNoter, its affiliates, and their respective successors and assigns, directors, officers, employees, representatives, agents, licensors, suppliers and service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees), arising in any way out of or in connection with: (a) your use of the Services or Provider Content; (b) your breach or violation of this Agreement; and/or (c) your Provider Content and/or Provider Content Information. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you and all negotiations for its settlement or compromise, and you agree to fully cooperate with us upon our request.
THE SERVICES, AND ALL CONTENT, PRODUCTS, ADDITIONAL SERVICES AND SMARTNOTER CONTENT MADE AVAILABLE ON, THROUGH OR IN CONNECTION THEREWITH, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, OR ANY GUARANTY OR ASSURANCE THAT THE SERVICES WILL BE AVAILABLE FOR USE, BE AVAILABLE OR PERFORM AS DESCRIBED. ALL IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS RELATING TO THE SERVICES AND ALL CONTENT, PRODUCTS, ADDITIONAL SERVICES AND SMARTNOTER CONTENT ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY MALICIOUS CODE, DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISING OUT OF YOUR USE OF THE SERVICES, SMARTNOTER CONTENT OR PROVIDER CONTENT. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT YOU ARE ASSUMING THE ENTIRE RISK AS TO THE QUALITY, ACCURACY, PERFORMANCE, TIMELINESS, ADEQUACY, COMPLETENESS, CORRECTNESS, AUTHENTICITY, SECURITY AND VALIDITY OF ANY AND ALL FEATURES AND FUNCTIONS OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, SMARTNOTER CONTENT OR PROVIDER CONTENT. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THE CAPACITY OF THE SERVICES, IN THE AGGREGATE AND FOR EACH USER, IS LIMITED. CONSEQUENTLY, SOME MESSAGES AND TRANSMISSIONS MAY NOT BE PROCESSED IN A TIMELY FASHION OR AT ALL, AND SOME FEATURES OR FUNCTIONS MAY BE RESTRICTED OR DELAYED OR BECOME COMPLETELY INOPERABLE. AS A RESULT, YOU ACKNOWLEDGE AND AGREE THAT WE ASSUME NO LIABILITY, RESPONSIBILITY OR OBLIGATION TO TRANSMIT, PROCESS, STORE, RECEIVE OR DELIVER TRANSACTIONS, SMARTNOTER CONTENT OR PROVIDER CONTENT AND YOU ARE HEREBY EXPRESSLY ADVISED NOT TO RELY UPON THE TIMELINESS OR PERFORMANCE OF THE SERVICES FOR ANY TRANSACTIONS OR DELIVERY OF SUCH INFORMATION. SOME JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OF CERTAIN WARRANTIES OR CERTAIN LIMITATIONS ON DAMAGES AND REMEDIES, ACCORDINGLY SOME OF THE EXCLUSIONS AND LIMITATIONS DESCRIBED IN THIS AGREEMENT MAY NOT APPLY TO YOU.
YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SMARTNOTER, OUR AFFILIATES, AND EACH OF THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, LICENSORS, OPERATORS, SUPPLIERS AND SERVICE PROVIDERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, OF ANY KIND, DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING FROM USE OF THE SERVICES OR FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES. YOU FURTHER ACKNOWLEDGE AND AGREE THAT WE SHALL HAVE NO LIABILITY WITH REGARD TO THE INFORMATION YOU UPLOAD, PROVIDE OR MAKE AVAILABLE THROUGH THE SERVICES, INCLUDING PROVIDER CONTENT.
For assistance with technical issues and other questions, please contact us at support@SmartNoter.com.
A. This Agreement contains the entire understanding and agreement between you and SmartNoter concerning the Services and supersedes any and all prior or inconsistent understandings relating to the Services and your use thereof. This Agreement cannot be changed orally. If any provision of this Agreement is held to be illegal, invalid or unenforceable, this shall not affect any other provisions and this Agreement shall be deemed amended to the extent necessary to make it legal, valid and enforceable. Any provision which must survive in order to allow us to enforce its meaning shall survive the termination of this Agreement; however, no action arising out of this Agreement or your use of the Services, regardless of form or the basis of the claim, may be brought by you more than one (1) year after the cause of action has arisen (or if multiple causes, from the date the first such case arose). The failure of SmartNoter to exercise or enforce any right or provision of this Agreement will not operate as a waiver of such right or provision.
B. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Virginia, exclusive of conflict or choice of law rules. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Fairfax County, Virginia before one arbitrator. The arbitration shall be administered by JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. The parties acknowledge that this Agreement evidence a transaction involving interstate commerce. Any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. Each of you and SmartNoter agree to adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement.
C. TO THE EXTENT ALLOWED BY LAW, EACH OF YOU AND SMARTNOTER WAIVE ANY RIGHT TO PURSUE DISPUTES ON A CLASS WIDE BASIS; THAT IS, TO EITHER JOIN A CLAIM WITH THE CLAIM OF ANY OTHER PERSON OR ENTITY, OR ASSERT A CLAIM IN A REPRESENTATIVE CAPACITY ON BEHALF OF ANYONE ELSE IN ANY ARBITRATION.
D. The Services are controlled by SmartNoter from its offices in the U.S. SmartNoter makes no representation or warranty that the Services or SmartNoter Content contained on or made available in connection therewith is legal, appropriate or available for use in other locations. Those who choose to access the Services from other locations do so at their own risk and are responsible for compliance with any and all local laws, rules and regulation, if and to the extent local laws, rules and regulations are applicable. No software made available in connection with the Services may be downloaded, exported or re-exported into (or to a national or resident of) any countries that are subject to U.S. export restrictions.E. Waiver and Severability
This Website and Services is operated by SmartNoter Inc., 9708 Galsworth Court, Fairfax, VA, 22032.
All notices of copyright infringement claims should be sent to the copyright agent designated in our Copyright Policy in the manner and by the means set forth therein.
All other feedback, comments, requests for technical support and other communications relating to the Website and Services should be directed to: firstname.lastname@example.org
This Agreement were last modified on the date indicated above and are effective as of July 1, 2020
Copyright © 2020 SmartNoter Inc.