Last Updated on June 30, 2014
Changes to the Site, Services and Terms
Description of Services; Free Services and Fee-Based Services
The term "Services" means the Site, Internet web pages, including but not limited to, the text, data, information, materials, software, and graphics contained or provided in any form or media that may be accessible through the SmartZip.com web, Facebook, and mobile applications, which application is currently located at the Site, as well as all updates, enhancements and modifications thereto, and all intellectual property contained therein. In addition, the meaning of "Services" will include all email, reports, correspondence, or data sent by SmartZip or its agents and/or accessed at the various URLs owned and operated by SmartZip.
The Services consist of: (i) services for which users are not required to pay any fee to SmartZip ("Free Services"), and (ii) services for which users must pay a fee to SmartZip before they can use such services ("Fee-Based Services"). SmartZip reserves the right in the future to charge for your use of any portion of the Free Services at any time in its sole discretion, upon notice to you. Also, in order to access certain areas of the Services or to be able to receive certain additional content/materials, SmartZip may require you: (a) to become a registered user, and/or (b) with respect to certain Fee-Based Services, to become a paid subscriber ("Premium Member") or to pay certain usage, printing or other fees. Most of these Terms apply to both the Free Services and the Fee-Based Services. If different terms apply to either type of Services, we make this clear below in these Terms. If any Services are subject to additional license or use terms, then those terms will apply in addition to these Terms and such additional terms, if any, are either set forth below in these Terms or they will be notified to you if and when you elect to use, purchase or download such Services.
If any Services are for specific third party software, content and/or other copyrighted material ("Third Party Content"), then your use of such Third Party Content is governed by the acknowledgements, licensing terms and disclaimers for such Third Party Content notified to you.
Use of the Services
Subject to these Terms, SmartZip grants you a revocable, non-transferable, non-exclusive limited license to use those portions of the Services to which you are granted access but only for your own personal, non-commercial use solely for the purpose of assessing real estate. The Services are not intended to be used for, and you will not use the Services for, the issuance of policies of title insurance or for use in the legal industry You may download, print and transmit electronic or hard copies of pages and reports from the Services or portions thereof but only in connection with your own personal use and not on behalf of or for the benefit of any third party and only as long as your use of the transmitted copies of pages and reports complies with these Terms.
Except as expressly set forth in these Terms, you may not (i) modify, publish, broadcast, or circulate the Services, or any portion thereof (including, but not limited to, any download or printed copies made from it); (ii) reverse engineer, decrypt, disassemble, or decompile any object code or algorithms or create derivative works from the Services; (iii) sublicense, sell, or resell the Services to any third party, or (iv) remove, obscure, deface or otherwise interfere with any proprietary or restrictive notice or legend contained in or included on any part of the Services. You also agree not to access or copy any portion of the Services through any automated viewing, downloading or crawling systems.
SmartZip has the right, at any time without notice, to revoke or limit your license to use the Services (or any portion of it), and change or discontinue providing the Services (or any portion thereof). SmartZip has no obligation to update the Services or to correct any errors or omissions that might be contained in it.
Compliance with Laws
You represent and warrant that your use of the Services, and the information, data and content provided as part of the Services, will comply at all times with all federal, state, and local laws, regulations, ordinances, court orders, and executive orders including but not limited to the Fair Housing Act and related Fair Housing laws, regulations, ordinances, court orders, and executive orders.
Ownership and Copyright
You acknowledge and agree that: (i) the Services including without limitation, any modifications, enhancements and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, "Proprietary Information") are owned by SmartZip and/or its third party licensors, content providers and other suppliers (collectively, "Content Providers"); (ii) the Proprietary Information contains valuable copyrighted material and is protected by U.S. and international copyright and other intellectual property laws; (iii) the Proprietary Information is licensed, rather than sold, to you pursuant to these Terms; and (iv) you have no rights in the Proprietary Information, other than the rights and licenses granted to user herein.
You further acknowledge and agree that you will not use the Services for any unlawful or unauthorized purpose, and that you will use reasonable efforts to protect any portion of the Services from illicit distribution or use. Each Content Provider is a third party beneficiary of these Terms to the extent necessary to enable it to enforce its proprietary rights in the data and the applicable use restrictions contained in these Terms.
You hereby acknowledge that SmartZip may disclose to you, as part of or in conjunction with Proprietary Information, valuable confidential information of SmartZip and/or its Content Providers. You agree to hold all such confidential information in confidence, in whole or in part, and not to use or disclose such confidential information to anyone except in connection with those uses and disclosures that are consistent with the license granted to you in these Terms. You further agree to use at least that degree of care which you use to protect your own information of a similar confidential nature, but in no event using less than reasonable protection. Excluded from such confidential information is information which was in your possession without confidential limitation before disclosure by SmartZip, is known or becomes known to the general public without breach of these Terms by you, is received rightfully by you without confidentiality limitations from a third party or is disclosed publicly by SmartZip without confidentiality restrictions. This confidentiality obligation survives the termination, expiration or cancellation of these Terms for any cause whatsoever, and remains in force in perpetuity.
"SMARTZIP" and our logos (both words and design) either are trademarks, service marks, or registered trademarks of SmartZip Analytics, Inc. or its Content Providers, and may not be copied, imitated or used, in whole or in part without SmartZip's prior express written consent or that of our Content Providers. In addition, all page headers, custom graphics, design and user interface elements, and scripts are service marks, trademarks, and/or trade dress of SmartZip and may not be copied, imitated, or used, in whole or in part without our prior written permission, which consent may be withheld in our sole discretion. All other marks or logos not owned by SmartZip are the property of their respective owners. Reference to any products, services, processes, or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by SmartZip.
Disclaimer of Warranties
THE SERVICES ARE PROVIDED "AS IS" WITH ALL FAULTS. SMARTZIP AND ITS CONTENT PROVIDERS DISCLAIM ALL WARRANTIES AND CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND REGARDING THE SERVICES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OWNERSHIP, NONINFRINGEMENT, ACCURACY OF INFORMATIONAL CONTENT, AND ABSENCE OF VIRUSES AND DAMAGING OR DISABLING CODE.
NEITHER SMARTZIP NOR ITS CONTENT PROVIDERS WARRANT THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE SERVICES. PAST PERFORMANCE OF A PROPERTY OR OTHER INVESTMENT VEHICLE DOES NOT GUARANTEE FUTURE PERFORMANCE. NEITHER SMARTZIP NOR ITS CONTENT PROVIDERS WILL BE LIABLE FOR YOUR OR ANY THIRD PARTY'S HOME PURCHASE OR SALE DECISIONS, INVESTMENT DECISIONS, DAMAGES, OR OTHER LOSSES RESULTING FROM USE OF THE SERVICES. YOUR USE OF OR RELIANCE UPON THE SERVICES AND ANY RESULTS PRODUCED BY OR OBTAINED VIA THE USE OF THE SERVICES WILL BE SOLELY AT YOUR OWN RISK AND SMARTZIP AND ITS CONTENT PROVIDERS WILL NOT BE LIABLE FOR ANY DAMAGE RESULTING FROM INACCURACY, INCORRECTNESS, UNSOUNDNESS, AND/OR UNRELIABILITY OF THE SERVICES OR RESULTS.
Limitation of Liability
UNDER NO CIRCUMSTANCES WILL SMARTZIP, ITS AFFILIATES, AGENTS, EMPLOYEES, CONTENT PROVIDERS OR ANY PERSON OR ENTITY THROUGH WHOM SMARTZIP MAKES THE SERVICES AVAILABLE BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM OR RELATING TO THESE TERMS, THE SITE, THE SERVICES, OR THE USE OF, OR RELIANCE ON, THE SERVICES, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, STRICT LIABILITY OR NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEPT AS SET FORTH BELOW IN THIS SECTION.
THE AGGREGATE LIABILITY OF SMARTZIP AND ITS CONTENT PROVIDERS ARISING FROM OR RELATING TO THESE TERMS, THE SITE, THE SERVICES, AND THE USE OF, OR RELIANCE ON, THE SERVICES WILL NOT EXCEED THE GREATER OF (i) THE FEES PAID BY YOU TO SMARTZIP FOR THE SPECIFIC SERVICE WHICH IS THE SUBJECT OF THE CLAIM, OR (ii) $100.
NEITHER SMARTZIP NOR ITS CONTENT PROVIDERS WILL BE LIABLE FOR ANY PUNITIVE, SPECIAL, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATING TO THESE TERMS, THE SITE, THE SERVICES, AND THE USE OF, OR RELIANCE ON, THE SERVICES, EVEN IF SMARTZIP OR ITS CONTENT PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SMARTZIP DOES NOT ENDORSE, WARRANT OR GUARANTEE, AND WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY FOR, ANY THIRD PARTY GOODS, PRODUCTS, SERVICES OR CONTENT AVAILABLE THROUGH THE SITE OR SERVICES, OR THIRD PARTY WEB SITES AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD PARTIES.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO ALL OR A PORTION OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. In such event, the liability of SmartZip for such damages with respect to the Site and Services will be limited to the greatest extent permitted by applicable law in such jurisdiction.
You agree to indemnify, defend, and hold harmless SmartZip, its affiliates, agents, employees and Content Providers from and against any and all claims, liabilities, losses, costs (including, but not limited to, reasonable attorneys' fees), and/or damages of any kind arising from or relating to: (i) your use of the Services; (ii) your breach of these Terms; (iii) your violation of any federal, state or local laws, regulations, ordinances, court orders, and executive orders; (iv) any messages, information, or materials uploaded, posted, published, or transmitted by you in connection with the Services or the Discussion Areas (as defined below); (v) your use of any information, data and content provided as part of the Services not authorized by the Terms; and/or (vi) your failure to comply with the provisions of the Section above titled "Compliance with Laws and Consumer Inquiries", or otherwise to comply with privacy and data protection laws, including all applicable federal, state, and local "Do Not Call" or "Do Not Mail" legislation.
User Account and Password
If you register with the Site and establish a user account ("Account"), you must have an e-mail address and you are required to select a password, which you may then modify at any time as often as you like. You may not select any password that violates any third party's rights or is offensive, improper, or inappropriate. If SmartZip determines in its sole discretion that any password you select is inappropriate for any reason, SmartZip may delete that password and/or limit or terminate your access to the Site.
Your Account is for your personal use only, and you are solely responsible for maintaining the confidentiality and security of your Account information and password and for all activity occurring under your Account as a result of your failure to keep such information secure and confidential. SmartZip will not be responsible for any losses arising out of the unauthorized use of your Account. You may not allow any third party to use your Account for any purpose. SmartZip has no liability to you or any third party for any loss or damage arising from your failure to comply with your obligations specified in this section. You agree that SmartZip may store and use the registration data you provide for use in maintaining and billing fees to your Account.
YOU ARE RESPONSIBLE FOR ALL USE, ACTIVITIES, AND CHARGES ASSOCIATED WITH OR ARISING FROM ANY USE OF YOUR ACCOUNT, REGARDLESS OF WHETHER YOU AUTHORIZED SUCH USE. YOU MUST PROMPTLY NOTIFY SMARTZIP (USING THE E-MAIL ADDRESS LISTED BELOW UNDER "CUSTOMER SERVICE AND PRODUCT SUPPORT") OF ANY UNAUTHORIZED USE OF YOUR ACCOUNT.
Third-Party Websites, Links, and Information
The Services may contain information, products, and services provided by third parties and links (including advertisements) to websites made available by third parties. This information and these products, services, and links are provided only as a convenience to users of the Services. SmartZip does not control this information or these products, services, or websites, SmartZip does not make any representations or warranties, express or implied, regarding this information or these products, services, or websites and will not be liable for any information or services you receive from them. Inclusion of any of the foregoing in the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with SmartZip with respect to any third party, any third party's website or its content, or any information, products, or services provided by a third party.
Privacy, Feedback and Information Made Available by You
User Submitted Content
SmartZip makes no representations or warranties with respect to any forums, blogs, private messages, emails, or other electronic discussion mediums made available on or via the Services (collectively, "Discussion Areas") or with respect to any messages, information, or materials contained in the Discussion Areas. You acknowledge and agree that your use of, or reliance upon, any such messages, information, or materials is at your sole risk and expense.
SmartZip does not, and cannot, review all of the information and materials provided in the Discussion Areas and has no responsibility or liability for any such information or materials or their use. If SmartZip becomes aware of any information or materials that it determines violate these Terms or the Discussion Areas policies promulgated by SmartZip from time to time or that SmartZip otherwise deems inappropriate in its sole discretion, SmartZip reserves the right to delete, move, or edit any such information or materials.
To the extent that you use the Discussion Areas, you covenant that you will: (i) comply with the Discussion Areas policies promulgated by SmartZip; (ii) be solely responsible for your use of the Discussion Areas and any messages, information, and materials provided by you or through another user making use of your Account; (iii) not advertise or offer to sell goods or services of any kind on any Discussion Areas; and (iv) not upload, post, publish, or transmit any messages, information, or materials that: (a) restrict or inhibit any other user from accessing, using or enjoying the Services, (b) are unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit, or indecent, (c) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law, (d) violate or infringe the rights of SmartZip or any third party (including but not limited to copyrights, trademarks, patents, trade secrets, and rights of privacy and publicity), (e) constitute or contain false or misleading indications of origin or statements of fact, (f) contain software or any other commercial materials or information, or (g) contain any viruses or other harmful component.
By uploading, posting, publishing, or transmitting any messages, information, or materials in connection with the Discussion Areas, you hereby grant to SmartZip an irrevocable, perpetual, transferable, non-exclusive, fully-paid-up, royalty-free, worldwide, license (sublicensable through multiple tiers) to (i) use, copy, modify, adapt, publicly display, publish, translate, publicly perform, distribute, reproduce, and create derivative works of the foregoing in any form, media, software, or technology of any kind now existing or developed in the future, and (ii) use (and permit others to use) the foregoing in any manner and for any purpose (including, but not limited to, commercial purposes) that SmartZip deems appropriate in its sole discretion (including, but not limited to, to incorporating the foregoing (or any modification thereto), in whole or in part, into any technology, product or service).
Digital Millennium Copyright Act
SmartZip respects the intellectual property and other proprietary rights of others and has a policy of removing content that infringes third party copyrights and suspending and/or terminating the Account of any user who uses the Services in violation of copyright law, and where appropriate, blocking such user's access to the Services. If you are a copyright owner, or an agent thereof, and believe that your work is the subject of copyright infringement and appears on the Site or is being published and distributed by SmartZip, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our copyright agent (designated below) with the following information in writing: (i) your physical or electronic signature; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit SmartZip to locate such material; (iv) information reasonably sufficient to permit SmartZip to contact you, such as an address, telephone number, and, if available, an e-mail address; (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are, or that you are authorized to act on behalf of, the owner of an exclusive right that is allegedly infringed. SmartZip's designated copyright agent to receive notifications of claimed infringement under the DMCA is:
SmartZip Analytics, Inc.
4450 Rosewood Dr, Ste. 300
Pleasanton, CA 94588
Only DMCA or other intellectual property rights-related notices should be sent to the copyright agent. Requests for customer service and product support should be addressed to firstname.lastname@example.org.
Governing Law and Jurisdiction. These Terms are governed by and construed in accordance with the laws of the State of California, or where applicable the federal laws of the U.S.A., excluding conflicts of law rules. You hereby consent to, and agree to bring any and all claims in a dispute exclusively under the rules of the American Arbitration Association (AAA) (www.adr.org). Any such claim must be arbitrated on an individual basis, and must not be consolidated in any arbitration claim of any other party. The arbitration must be conducted in Alameda County, California, and judgment on the arbitration award may be entered into any court have jurisdiction thereof. The arbitration proceedings will be governed by United States Federal Arbitration law and by the AAA rules without reference to state arbitration law. Such arbitration will be final and binding.
Severability. To the maximum extent possible, each provision in these Terms will be interpreted in such manner as to be valid and enforceable under applicable law. If any provision of these Terms is held to be invalid or unenforceable under applicable law, such provision will be modified so as to be rendered valid and enforceable while implementing, to the maximum extent possible, the original intent of such provision. If such modification is not possible or allowed, then such provision will be ineffective only to the extent of such unenforceability or invalidity without affecting the remainder of such provision or any other provisions in these Terms.
Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action by you arising out of or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Assignment. SmartZip may freely assign these Terms or any of its rights or obligations hereunder to any third party. Neither these Terms nor any obligations or rights hereunder may be assigned, delegated, or otherwise transferred by you without SmartZip's prior written consent, which consent may be withheld in SmartZip's sole discretion. Any attempted assignment in violation of this provision will be void. Subject to the foregoing, these Terms will inure to the benefit of the parties' permitted successors and assigns.
Third Party Beneficiaries. These Terms will not be interpreted or construed to confer any rights or remedies on any third parties.
Waiver. Any waiver by SmartZip of any right or provision of these Terms must be in a writing signed by SmartZip. The failure of SmartZip to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. These Terms will be interpreted without application of any strict construction in favor of or against you or SmartZip.
Independent Contractors. SmartZip and you are independent contractors, and nothing in these Terms is intended to create, or will be construed as creating, any employment, partnership, joint venture or comparable relationship.
Force Majeure. SmartZip will have no liability to you or any third party for any failure by SmartZip to perform its obligations under these Terms in the event that such non-performance arises as a result of the occurrence of an event beyond the reasonable control of SmartZip, including without limitation an act of war or terrorism, natural disaster, failure of electricity supply, failure or delay in transportation, civil commotion or other event of force majeure.
PREMIUM MEMBER PROVISIONS
In addition to the above provisions of these Terms, the following provisions of these Terms will apply to you if you are a Premium Member.
You may not use the subscription-based Services ("Premium Service") without a valid subscription from SmartZip. To obtain a subscription, you must register for the Premium Service by completing the online registration form available on the Site. Your subscription will not be valid unless and until SmartZip accepts your registration. By registering for the Premium Service, you represent and warrant that all registration information that you provide is true, complete, and accurate, and you agree to notify SmartZip promptly of any changes to this registration information by editing your user profile in the My Account area of the Site. You may be offered a free trial subscription to the Premium Service, beginning on the date on which SmartZip accepts your registration. If you don't terminate during this trial period, the initial term of your regular paid Premium Service subscription will start immediately after the free trial period ends, and will continue for the length of time that you selected when you registered. If you have taken a Premium Service trial in the past 24 months, you will not receive a free trial and your credit card will be charged immediately for the subscription fee associated with the term you select.
You understand that, unless you notify us that you wish to terminate your subscription before the end of your then-current subscription term, your subscription will continue to automatically renew for successive terms of the same duration and your credit card will be charged for each such renewal at the subscription fee in effect at the time of that renewal. In those instances where you took advantage of a special or introductory offer to become a Premium Member, your subscription will automatically renew to the term specified in the offer and your credit card will be charged the subscription fee in effect at the time of that renewal. The term "subscription term" will refer to the term of your subscription then in effect, regardless of whether it is the initial term or any renewal of that term.
SMARTZIP RESERVES THE RIGHT TO CHANGE THE PREMIUM SERVICE AT ANY TIME WITHOUT NOTICE (INCLUDING BUT NOT LIMITED TO ADDING OR REMOVING FEATURES). IF YOU ARE DISSATISFIED WITH ANY SUCH CHANGES, OR IF YOU ARE OTHERWISE DISSATISFIED WITH THE PREMIUM SERVICE (INCLUDING BUT NOT LIMITED TO ITS PERFORMANCE OR AVAILABILITY), YOUR ONLY REMEDY WILL BE TO CANCEL YOUR SUBSCRIPTION, AS SET FORTH BELOW.
Your subscription is personal to you, and you may not transfer or share your subscription with any other person (including but not limited to your co-workers) other than immediate family members living in the same household, provided that: (i) such family members have read and agree to be bound by these Terms; (ii) your subscription is not simultaneously used by more than one person at any given time; and (iii) you agree to be responsible for any use of your subscription by those other family members.
Charges and Billing Practices
If offered a free trial period, you will not be charged a subscription fee during that free trial period. Subscription Fees on credit-card transactions will be authorized immediately, but not actually processed. If you remain a Premium Member when the free trial period ends, you will be charged for the initial term of your subscription and then, at the beginning of each renewal term, if any, for the subscription fee for that renewal term. Subscription fees will be based upon the subscription rates in effect at the start of each subscription term and apply whether or not you actually use the Premium Service during that term. Subscription fees are nonrefundable, except as expressly stated below.
SmartZip reserves the right to change the fees it charges for products, services or features (collectively, "Products") offered in connection with the Premium Service and/or the Services at any time. These sorts of changes include, but are not limited to, adding fees for new/optional Products and/or modifying fees for existing Products. By using any of the Products, with which there are associated fees, you agree to pay those fees. If you do not want to pay these associated fees, you must cancel your subscription, as set forth below.
Subscription fees and all others fees and charges associated with your subscription (including, but not limited to, any applicable federal, state, and local taxes) will be billed automatically to the credit card you provide when registering for the Premium Service ("your credit card"). If your credit card is a VISA or MasterCard and the number or expiration date for your credit card changes for any reason (for instance, you get a new number because your old card expired, was stolen, etc.), that updated information may be automatically passed on from your credit card issuer to SmartZip, and if we do receive such information, it will be treated by SmartZip as if it were originally furnished by you. To learn more about this service being provided by your credit card issuer, please contact them directly.
You must promptly notify SmartZip (as set forth below) if any information related to your credit card changes or is no longer valid or of any other change to the information you provided SmartZip regarding your credit card (including, but not limited to, changes to your billing address or other pertinent contact information). Absent such notification, SmartZip will assume that all of the information related to your credit card remains valid and will submit to the card processor all information that it requires for approval, both when you initially subscribe and, if applicable, upon the commencement of any renewal of that subscription. If any subscription fees or other charges billed to your credit card are declined for any reason, SmartZip will have the right to suspend your subscription until such subscription fees or other charges are paid in full. You agree to pay all costs (including attorneys' fees) incurred by SmartZip in collecting any unpaid subscription fees or other charges from you.
The initial term of this Agreement is 12 months from the date access to the SmartList is first provided to Licensee ("Activation Date"). The Agreement automatically will renew for successive 12 months terms on the anniversary of the Activation Date unless cancelled by either party in accordance with the Cancellation/Termination paragraph below. ANY AND ALL FEES PAID TO SMARTZIP FOR THE TARGETING SERVICES ARE NON-REFUNDABLE ONCE THE SUBSCRIPTION HAS BEEN ACTIVATED. ALL PAYMENT OBLIGATIONS IN AN ORDER STATEMENT ARE NON-CANCELABLE DURING THE TERM OF THE AGREEMENT.
SmartZip may immediately cancel your subscription, without notice or liability, if it determines in its sole discretion that: (i) you have breached any portion of these Terms; or (ii) your use of or access to the Premium Service or the Site violates any applicable law or regulation or otherwise inhibits any other subscriber from using or accessing the Premium Service or any other service offered by SmartZip on the Site. None of the foregoing limits any other legal, equitable, or contractual rights available to SmartZip.
SmartZip may, in its sole discretion, choose not to renew your subscription by sending a notice of non-renewal at any time during your subscription term to the e-mail address you provided when completing your registration. You will be deemed to have received this notice, whether or not you saw it or the e-mail address provided by you continues to be valid. In the event of such a notice, your subscription will cease and will not automatically renew at the end of your then-current subscription term.
SmartZip may, in its sole discretion, terminate your subscription for convenience, without notice or liability, except that SmartZip will provide a pro-rata refund to you of any prepaid but unused subscription fees.
Customer Service and Product Support
For customer service and product support related to your Premium Service subscription, contact SmartZip email@example.com.
If you elect to use the SMS Services (as defined below), then the following SMS Terms of Service ("SMS Terms") apply and are in addition to and supplement the above Terms.
Unless otherwise specified, terms defined in the Terms will apply to these SMS Terms. Your use of the SMS Services is governed by the collective terms of both these SMS Terms and the Terms. If there is a conflict between these SMS Terms and the Terms with respect to the SMS Services, then these SMS Terms will prevail with respect to the SMS Services.
You agree to incorporate all of the terms and conditions of these SMS Terms into your arrangements with any users who you authorize to use the SMS Services and to enforce such terms.
Subject to your acceptance of and compliance with these SMS Terms and with the payment requirements, if any, for the SMS services, SmartZip hereby grants you a limited, non-exclusive, non-transferable, non-sublicenseable, revocable right and license to access and use the SMS services ("SMS Services"). You understand and acknowledge that mobile carrier charges may apply to your use of the SMS Services.
Your Account and Mobile Number
You represent and warrant that the mobile number you enter into your SmartZip Account for purposes of receiving the SMS Services is your mobile number. You understand and acknowledge that you are solely responsible for ensuring that the mobile number specified for the SMS Services is correct and current, and that if you change mobile numbers you are responsible for updating your Account with your new mobile number. SmartZip will not be responsible for your inability or failure to receive the SMS Services due to an incorrect or outdated mobile number specified in your Account.
You represent and warrant that your use of the SMS Services will not violate the terms of the SMS Acceptable Use Policy or other SMS Terms. You will not use the SMS Services for any illegal, immoral or improper purpose or in any manner which contravenes the SMS Terms, the SMS Acceptable Use Policy and the general SmartZip Terms of Service.
Warranties, Disclaimers & Liability
THE SMS SERVICES ARE PROVIDED "AS IS" WITH ALL FAULTS. SMARTZIP DOES NOT WARRANT THAT THE SMS SERVICES WILL BE AVAILABLE CONTINUOUSLY OR THAT ALL THE MOBILE OPERATORS WILL BE REACHABLE AT ALL TIMES. SMARTZIP AND ITS LICENSORS MAKE NO WARRANTIES, REPRESENTATIONS OR OTHER UNDERTAKINGS IN CONNECTION WITH THE MOBILE OPERATORS OR THE PROVISION OF SMS SERVICES AS CONTEMPLATED HEREIN, AND DISCLAIM ALL TERMS NOT EXPRESSLY CONTAINED HEREIN, WHETHER WRITTEN OR ORAL, CONTRACTUAL, EXPRESS OR IMPLIED, OR OTHERWISE INCLUDING WITHOUT LIMITATION ANY WARRANTIES AS TO MERCHANTABILITY, QUALITY (INCLUDING ANY WARRANTIES AS TO LATENCY AND THROUGHPUT), FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE AND NON-INFRINGEMENT.
SmartZip cannot guarantee that the SMS Services will not be faulty, and SmartZip will take (or request that its licensors take) reasonable commercial efforts to correct reported faults and restore the SMS Services as soon as practicable.
SmartZip or its licensors may temporarily suspend the SMS Services in order to undertake maintenance or upgrades. SmartZip will use reasonable efforts to give you prior notice of such maintenance-related suspensions but may not always be able to do so.
Neither SmartZip nor its licensors are responsible in any way for any mobile telecommunications systems or networks. Neither SmartZip nor its licensors are liable for the acts or omissions of providers of telecommunication services (including suspension or termination of SmartZip and its licensors' connections and/or contracts with any mobile operator) or for faults in or failures of their apparatus or network, and in general for any other technical reason attributable to a mobile operator's network or a telecommunication service provider.
You acknowledge that SmartZip has no control over how the SMS Services are used by you, and that SmartZip does not examine the use of such information. You will be solely liable for the accuracy, completeness and appropriateness of the content transmitted by you or anyone else using the SMS Services on your behalf. You agree to handle your SmartZip credentials (login/password) carefully and take responsibility for any and all use of your credentials. SmartZip disclaims all liability of any kind in connection with the transmission or reception of such content. In case your content is found to be offensive or unacceptable by third parties, SmartZip may immediately suspend (i.e. temporarily stop providing) or terminate the SMS Services.
NEITHER SMARTZIP NOR ITS LICENSORS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES INCURRED BY YOU, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFIT, REVENUE OR INCOME, LOSS OR USE OF DATA, OR INTERRUPTION OF BUSINESS, HOWEVER ARISING AND WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE) OR BASED ON BREACH OF ANY WARRANTY, EVEN IF SMARTZIP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE AGGREGATE LIABILITY OF SMARTZIP AND ITS LICENSORS ARISING FROM OR RELATING TO THESE SMS TERMS, THE SMS SERVICES, AND THE USE OF, OR RELIANCE ON, THE SMS SERVICES WILL NOT EXCEED THE GREATER OF (i) THE FEES PAID BY YOU TO SMARTZIP FOR THE SMS SERVICES, OR (ii) $100. YOU RELEASE US FROM ALL OBLIGATIONS, LIABILITY, CLAIMS OR DEMANDS IN EXCESS OF THE LIMITATION OF LIABILITY. THE PARTIES ACKNOWLEDGE THAT THIS IS A REASONABLE ALLOCATION OF RISK.
You will indemnify and hold harmless SmartZip and its licensors, and its and their parent companies, subsidiaries and affiliated companies, its and their respective officers, directors, employees and agents, subcontractors, suppliers (each, an "indemnified party") from and against any and all claims, demands, actions, damages, costs and expenses, or liability of whatever nature incurred or to be incurred by an indemnified party (including but not limited to costs of investigation and reasonable attorney and other third party fees and, to the extent permitted by law, fines and penalties) in connection with or arising from (i) your use of the SMS Services other than as expressly authorized in this Agreement, (ii) your infringement of any third party intellectual property rights in connection with or arising from your use of the SMS Services, (iii) any breach of these SMS Terms, and (iv) any claims arising from information, data, or messages transmitted by you using the SMS Services that we contend comprise a violation of our SMS Acceptable Use Policy.
These SMS Terms will be effective upon your registering for the SMS Services. These SMS Terms will remain in effect until terminated by you or us in accordance with this Section.
You may terminate these SMS Terms for any reason or no reason at all, at your convenience, by closing your account for any SMS Services for which we provide an account closing mechanism or by contacting us.
We may suspend or terminate your right to use any or all SMS Services for any reason or for no reason at our discretion at any time by providing you 30 days' advance notice.
We may suspend or terminate your right to use the SMS Services for cause effective as set forth below:
Effect of Suspension or Termination:
In the event these SMS Terms expire or are cancelled or terminated for any reason, the following Sections of these SMS Terms will survive any such expiration, cancellation or termination: Your Representations, Warranties, Disclaimers & Liability, Indemnification, Effect of Suspension or Termination and Intellectual Property.
Intellectual property rights in all software, information, technology or data whatsoever supplied by SmartZip under these SMS Terms and the SMS Services will remain the property of SmartZip or its licensors, and you agree to not copy, sell, modify, adapt, translate, reverse engineer, decompile or disassemble or create derivative works of any SMS Services or software or other products that form any part of the SMS Services, or permit others to do so (except that the foregoing does not apply to content that you legally transmit using the SmartZip Site). Any intellectual property rights to any developments will be the property of the developing party.
Nothing in these SMS Terms or the SMS Services may be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of SmartZip or its licensors' trademarks displayed on the SMS Services, without our prior written consent, and as between us, SmartZip owns the goodwill generated from the use of SmartZip trademarks.
Notices that we provide to you under these SMS Terms (e.g., notices of breach and/or suspension) will be provided via a notification message displayed on your account page or in email to the email address you provide us in your registration for the SMS Services or through periodic updates you make to your account profile. It is your responsibility to keep your email address current, and you will be deemed to have received any email sent to the last known email address we have on record for you. Notices we send you will be deemed effective upon our sending of the email, whether or not you actually receive the email.
For notices you provide to us under these SMS Terms, please contact SmartZip by as instructed in the SmartZip Terms.
Additional Information Regarding the Use of US SMS Services
You are strictly prohibited from using Inbound and Outbound SMS Services in connection with any call types that would result in SmartZip or its licensors incurring originating access charges, local exchange carrier "DIP" fees or other call types that may be subject to reverse billing process, application or charge. In the event that you fail to comply with the terms of this Section, SmartZip may (i) immediately suspend or terminate the SMS Services without notice or opportunity to cure and (ii) charge you additional per minute or SMS fees for all Inbound SMS Services from and after the date of any violation.
Acceptable Use Policy
Our Services may be used only for lawful purposes and may not be used for any illegal, improper or abusive activities.
If you violate (or if we have reason to believe that you have violated) the terms of this Acceptable Use Policy, in addition to our available remedies described in the Terms or otherwise provided by law, we may investigate the incidents that we believe are contrary to this Acceptable Use Policy and following written notice from third parties, we may provide requested information to affected third parties. You agree to cooperate with us in investigating complaints about potential violations and in taking any corrective action that we deem necessary to correct an impermissible use of the Services by you. Our failure to enforce this policy does not amount to a waiver of our rights hereunder.
Engaging in any activity that, in SmartZip's sole and absolute discretion, disrupts, interferes with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the Services, SmartZip's business, operations, reputation, goodwill, customers and/or customer relations, or the ability of SmartZip's customers to effectively use the Services is prohibited. Such prohibited activities include making available any program, product or service that is designed to or could be used to violate these Terms. In addition, your failure to cooperate with SmartZip in correcting or preventing violations of these Terms by, or that result from the activity of, a customer, subscriber, patron, invitee, visitor, or guest of yours constitutes a violation of these Terms by you. Without limiting the rights and remedies available to it, SmartZip reserves the right in its sole discretion, to suspend or terminate your access to your account and the Services, with or without notice, and to take any other action that SmartZip determines in its sole discretion is necessary as a result of any behavior by you that is illegal, inappropriate, disruptive to the Site, the Services, or to any other user of this Site or the Services, or which otherwise breaches these Terms. SmartZip may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required, or otherwise in SmartZip's sole discretion, SmartZip will cooperate with law enforcement agencies in any investigation of alleged illegal activity conducted using this Site or the Services. These prohibitions do not require SmartZip to monitor, police, remove or reject any or your content, data or other information submitted by your or any other user.
The following list gives examples of uses of the Services that are illegal, abusive, interfering or otherwise unacceptable or inappropriate. This list is provided by way of example and is not exhaustive: