SmartMoving™ Terms of Service
Last modified: October 7, 2024
1. SERVICES AND LICENSE GRANT
1.1 This Terms of Service is by and between the business entity that signs up for SmartMoving Services (“Customer”) and SmartMoving Software, LLC (“SmartMoving”) (the “Terms of Service”). This Terms of Service governs Customer’s and its Authorized Users’ use of SmartMoving’s CRM and any moving software products, features, and services provided by or on behalf of SmartMoving (“Services”). This Terms of Service and any other terms you agree to for our Services, including but not limited to orders for SmartMoving Services, invoices for our Services, and any other terms incorporated herein, constitute the “Agreement” between Customer and SmartMoving.
1.2 The Services provided by SmartMoving are available on SmartMoving’s Services Description page. Customer agrees to receive the Services it signs up for, and SmartMoving agrees to provide those Services, as set forth in the Customer orders agreed to by both parties, email confirmation by the parties being sufficient.. FOR THE AVOIDANCE OF DOUBT, BY SIGNING UP FOR SMARTMOVING SERVICES, OR OTHERWISE USING SMARTMOVING SERVICES, CUSTOMER HEREBY AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
1.3 Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, SmartMoving hereby grants Customer a limited, non-exclusive, non-transferable right to access and use the Services during the Term, solely for Customer’s internal use by Customer's employees, consultants, contractors, agents, and otherwise designated individuals (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder (each an “Authorized User”) in accordance with the subscription type and the terms and conditions herein. The total number of Authorized Users will not exceed the number set by SmartMoving in writing.
1.4 Upon Customer request, and written approval of SmartMoving, email being sufficient, SmartMoving shall provide Customer, at Customer’s expense, additional Services, features, and other changes SmartMoving makes or adds to the Service and which SmartMoving offers to other subscribers of the Service. Fees for any additional Services, features thereof, and other changes thereto shall be billed immediately and shall be prorated for the then applicable billing period, and thereafter included as appropriate in any subsequent renewal Terms.
1.5 SmartMoving reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of SmartMoving’s Services to its customers; (ii) the competitive strength of or market for SmartMoving’s Services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable law; provided, however, any changes shall not materially diminish the features or functionality of the Services. Any changes in pricing shall be effective on the next applicable billing period.
1.6 SmartMoving may, directly or indirectly, suspend, terminate, or otherwise deny Customer’s or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) SmartMoving receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires SmartMoving to do so; or (b) SmartMoving believes, in its good faith and reasonable discretion, that: (i) Customer has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (c) this Agreement expires or is terminated. This Section 1.3 does not limit any of SmartMoving’s other rights or remedies, whether at law, in equity, or under this Agreement.
1.7 The Services are enhanced frequently. Updated features and functions for Customer’s existing service subscription, including all software improvements and content updates will be provided to Customer at no additional cost during the Term. Customer is not entitled to additional features and functions that are not within the scope of Customer’s service subscription.
1.8 Customer’s use of the Services is governed by this Agreement as well as the Acceptable Use Policy, which may be updated from time to time by SmartMoving without notice to Customer. The Acceptable Use Policy is incorporated into this Agreement by this reference and made a part hereof. In the event of any inconsistency or conflict between the Acceptable Use Policy and this Agreement, first the terms of this Agreement shall prevail, followed by the Acceptable Use Policy.
1.9 1.7 SmartMoving may from time to time make any third-party products provided with or incorporated into the Services (“Third-Party Products”) available to Customer or its Authorized Users. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer or an Authorized User, as applicable, does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not use such Third-Party Products, and Customer acknowledges the Services may be limited without such use. Third-Party Products may include software components that are subject to an open-source license agreement, which may include software available under certain open-source operating systems, software licenses, or any other license that is approved by the Open-Source Initiative (“Open-Source Components”). Nothing in these Terms limits Customer’s rights under, nor grants Customer rights that supersede, the terms and conditions of any applicable license terms for any Open-Source Components. A list of Open-Source Components which SmartMoving may make available through the Service and information related to those Open-Source Components is available upon Customer’s written request.
1.10 SmartMoving may from time to time, and at its discretion, make available to Customer certain trial, beta, or similar services (“Beta Services”), in which case Customer may use such Beta Services for internal evaluation for the duration identified by SmartMoving. Beta Services may be provided via a Free Trial Period (defined herein) or otherwise. Customer understands and agrees that such Beta Services: (a) may be available for a temporary period, and may be removed or modified at any time; (b) may not ultimately be incorporated into commercially available Services; (c) may contain errors or undocumented functionality; and (d) are not subject to any representations, warranties, security or availability security requirements, or other guarantees that SmartMoving makes about its standard Services. Use of any Beta Services is at Customer’s own risk, and Customer hereby releases SmartMoving from any obligation, responsibility, or liability related to the use thereof. Any use of the Beta Services is confidential and subject to Section 4’s confidentiality requirements. THE BETA SERVICES ARE PROVIDED “AS IS” AND SMARTMOVING DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SMARTMOVING DOES NOT WARRANT THAT THE BETA SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE BETA SERVICES.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services; (ii) copy, modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by SmartMoving or authorized within the Services); (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service or otherwise provide the Services for the benefit of a third party; (iv) use the Services in connection with the delivery or transmission of unsolicited messages (commercial or otherwise) or spamming that is in violation of applicable laws; (v) use the Services to store sensitive personal information or otherwise input any sensitive personal information into the Services (vi) impersonate any other person or entity or misrepresent affiliation with any other person or entity; (vii) use the Services to create or distribute any images, sounds, messages or other materials, which are obscene, harassing, racist, malicious, fraudulent or libelous, nor use the Services for any activity that may be considered or are unethical, immoral, or illegal; (viii) transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity, and privacy; (ix) access or use the Services for purposes of competitive analysis of the Services, the development, provision, or use of a competing software service or product or any other purpose that is to SmartMoving’s detriment or commercial disadvantage; (x) remove any proprietary notices or labels; (xi) allow the shared use of Authorized User logins or exceed the agreed upon number of Authorized Users, or (xii) otherwise access or use the Services beyond the scope of the authorization granted under this Agreement.
2.2 Customer represents, covenants, and warrants that Customer will (i) use the Services only in compliance with all applicable laws and regulations; (ii) abide by all applicable local, state, national and international statutes, treaties, guidelines, advisories, rules and regulations in connection with data submitted by Customer to SmartMoving and uses of the platform; (iii) comply with all applicable industry and carrier guidelines and policies pertaining to use of short codes and text messaging; (iv) not intentionally collect, use, retain or transmit any personal information via the Services that is deemed to be sensitive or confidential in nature, such as but not limited to Social Security Number, driver’s license number, health or medical information, and/or financial information; (v) implement and maintain reasonable security practices and procedures appropriate to the nature of its personal information that will protect the personal information from unauthorized collection, access, destruction, use, modification, or disclosure; (vi) notify the SmartMoving immediately of any known or suspected unauthorized access to or acquisition of, or use of any password or account or any other known or suspected breach of security that could impact the Services; (vii) accurately inform and disclose to its end users, message recipients, and/or constituents, terms consistent with how end user data is used; (viii) obtain all requisite consent from all end users, message recipients, and/or constituents via all applicable communication platforms or mediums, to use the end user data for the Services, including any verification and authentication of the end user, message recipient, and/or constituent; (ix) ensure that all personal information is correct and complete to the best of its knowledge; and (x) provide each end user with a lawful functioning facility or mechanism to withdraw his, her or its consent, and will not send communications to any end user after receipt of an opt-out request, except to confirm the opt-out request in compliance with applicable laws. Although SmartMoving has no obligation to monitor Customer’s use of the Services, SmartMoving may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.3 Customer understands, acknowledges and agrees that although SmartMoving may offer suggestions or information regarding compliance with applicable laws, including election laws, or industry regulations pertaining to the call-to-action for a marketing or promotional campaign, the content of Customer communications, or the requisite consent from recipients that authorize the delivery of any communications, Customer represents and warrants that it is solely responsible and fully liable for: (i) the content of any call-to-action and publication of the call-to-action via print, broadcast, or any other communications medium; (ii) the content of any communications sent using the Services (including any disclosures and required commands such as STOP or HELP); (iii) securing the proper scope of consent from its recipients via the appropriate mechanisms or other third party platforms; and (iv) retaining the required tangible documentation of any such consent to include date, time, and telephone number or IP address (as applicable).
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.5 Customer shall at all times during the Term: set up, maintain, and operate in good repair all Customer Systems (as defined below) on or through which the Services are accessed or used; and (b) provide all cooperation and assistance as SmartMoving may reasonably request to enable SmartMoving to exercise its rights and perform its obligations under and in connection with this Agreement.
2.6 SmartMoving is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.
2.7 If Customer becomes aware of any actual or threatened activity prohibited by Section 2, Customer shall immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify SmartMoving of any such actual or threatened activity.
3. SECURITY
3.1 SmartMoving employs security measures in accordance with applicable industry practice and standards, applicable laws, rules, and regulations.
3.2 Customer has and will retain sole responsibility for: (a) all Customer Data (as defined below), including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (”Customer Systems”); (d) the security and use of Customer’s access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Customer Systems access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
3.3 Customer shall employ all commercially reasonable physical, administrative, and technical controls, screening, and security procedures and other safeguards designed to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.
4. CONFIDENTIALITY; PROPRIETARY RIGHTS
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, pricing information, compensation information, know-how, compilations, processes, data protection, or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of SmartMoving includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to SmartMoving to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use or divulge (except in performance of the Services or as otherwise permitted herein) to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.
4.2 Customer shall own all right, title and interest in and to the Customer Data. Customer hereby permits SmartMoving such limited rights and permissions in or relating to Customer Data as are necessary for SmartMoving to enforce this Agreement, perform the Services, and exercise SmartMoving’s rights and perform its obligations hereunder.
4.3 SmartMoving, or its third-party licensors, shall own and retain all right, title and interest in and to (a) the Services and software, all improvements, enhancements or modifications thereto, and (b) all intellectual property rights related to any of the foregoing. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to the Services whether expressly, by implication, estoppel, or otherwise.
4.4 Notwithstanding anything to the contrary, SmartMoving, and its Subcontractors, shall have the right to collect and analyze data and other information relating to and solely for the purpose of the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom such as usage reports, user statistics, and other inputs into SmartMoving’s artificial intelligence functionalities (“Resultant Data”)), and SmartMoving will be free (during and after the term hereof) to (i) use Resultant Data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other SmartMoving offerings, and (ii) disclose Resultant Data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4.5 After termination subject to Section 6, SmartMoving will make, for a fee, all Customer Data stored with SmartMoving available to Customer for electronic retrieval for sixty (60) days after termination.
5. PAYMENT OF FEES
5.1 Subject to exceptions under this Section 5 or any Free Trial Periods under Section 6.1, Customer will pay SmartMoving the then applicable fees described and agreed upon by Customer at the point of purchase and for any additional Services or Users added subsequently at the Customers’ request (the “Fees”). SmartMoving reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of each Renewal Term, upon twenty (20) days prior notice to Customer (which may be sent by email). All charges are fully earned upon payment and there are no refunds or credits for partially used monthly or annual subscriptions, as applicable. No refunds shall be issued for any undeliverable messages sent via the Services. In addition to any Fees charged for Services, SmartMoving may charge, and Customer authorizes SmartMoving to charge, for any fees, charges, expenses, or any other amounts which Customer or its Authorized Users incur, or which are imposed upon SmartMoving due to Customer’s or its Authorized User’s actions or omissions, due to the use of any Third-Party Products.
5.2 SmartMoving may choose to bill through an invoice, in which case, full payment of Fees for invoices issued in any given month must be received by SmartMoving prior to the following month’s Services being rendered. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on SmartMoving’s net income.
5.3 All amounts due under this Agreement shall be paid by credit card or other payment method agreed to by SmartMoving. Customer hereby authorizes us to charge the payment method for all applicable Fees and Taxes for each billing period during the Term. Customer further authorizes us to use a third party to process such payments, and hereby consents to the disclosure of Customer’s billing information to such third party. Customer shall promptly provide SmartMoving with updated credit card information in the event that Customer’s credit card on file is no longer valid. If the credit card information on file with SmartMoving is not valid at any time during the Term, (i) Customer hereby authorizes SmartMoving to continue to attempt to charge the amounts due until such amounts are paid in full; and (ii) SmartMoving reserves the right to immediately terminate this Agreement, or suspend Customer’s access to the Services. If at any time Customer’s access to the Services is suspended or disabled (as applicable) for non-payment, SmartMoving may charge a reactivation fee to reinstate them. SmartMoving reserves the right to stop accepting credit card payments from one or more issuers upon written notice to Customer.
6. TERM AND TERMINATION
6.1 SmartMoving may, at its sole discretion, at the beginning of or during a Term (as defined below), authorize free trial periods to particular features of the Services or entire licenses (each a “Free Trial Period”). Once a Free Trial Period of a particular feature or the entire license ends, SmartMoving will begin billing Customer’s payment method for periodic subscription fees (plus any applicable taxes), unless Customer cancels prior to the end of the Free Trial Period.
6.2 Subject to earlier termination as provided below, this Agreement begins as of the Effective Date and continues on a month-to-month, quarter-to-quarter, or year-to-year basis as follows: following the Effective Date, this Agreement shall continue for one (1) month, three (3) months, or one (1) year, thereafter, as applicable in the order you place with SmartMoving, and unless otherwise agreed to between the parties in writing (the “Initial Service Term”), and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (each, a “Renewal Term;” any Free Trial Period, the Initial Term, and any Renewal Term shall collectively be referred to as the “Term”), unless either party requests termination subject to the provisions below. Customer may request to change the duration of its subscription Term at any time from monthly, quarterly or annual to a different Term duration that SmartMoving offers, email request to SmartMoving being sufficient. Following receipt of such a request, SmartMoving may, at its sole discretion, update the Customer's Term length, provide the start date for the change in such Term and how Renewal Terms will be calculated moving forward, and list the additional costs or change in Fees associated with such change, if any, upon written notice to Customer, email being sufficient. Customer shall provide notice of its intent to terminate this Agreement by sending an email to billing@SmartMoving.com no later than 48 hours prior to the end of the then-current Term. SmartMoving reserves the right to discontinue any particular service, feature, or function upon notice to Customer.
6.3 SmartMoving may suspend Customer’s access to the Services and disable Customer’s presence on the Services if any payment is past due and such failure to pay will be considered a material breach of this Agreement.
6.4 In addition to any other remedies it may have, either party may also terminate this Agreement upon (i) written notice, if the other party materially breaches any of the terms or conditions of this Agreement and such breach (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching Party with written notice of such breach, or (ii) effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
6.5 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, intellectual property, confidentiality obligations, warranty disclaimers, limitations of liability, survival, effect of termination, and the Miscellaneous provisions under Section 12.
6.6 With the exception of Customer’s right to data under Section 4.5 or as otherwise stated under Section 6.7, upon termination of this Agreement without breach, all rights granted hereunder to Customer will cease at the end of the then-current billing period, and Customer’s access to the Services will be disabled. Customer will pay in full for the Services provided up to and including the last day on which the Services are provided.
6.7 Upon termination of this Agreement for breach, all rights granted hereunder to Customer will immediately cease and Customer will immediately cease all access and use of the Services.
7. WARRANTY AND DISCLAIMER
7.1 Each party represents and warrants to the other party that (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (iv) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
7.2 SmartMoving makes available certain content and information within the Services. Any and all information made available by or through the Services is provided for informational purposes only and is not to be relied upon as a professional or legal opinion whatsoever, including any information or content derived from Third-Party Products. Customer acknowledges and agrees that the content and information available on the Services does not constitute professional or legal advice and is not guaranteed to be accurate, complete, reliable, current or error-free. SmartMoving disclaims all liability and responsibility arising from any reliance placed on such materials by Customer or by anyone who may be informed of any of its contents.
7.3 SmartMoving shall use reasonable efforts consistent with prevailing industry standards to maintain and perform the Services in a manner which minimizes errors and interruptions in the Services, and in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by SmartMoving or by third-party providers, or because of other causes beyond SmartMoving’s reasonable control, but SmartMoving shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. THE FOREGOING WARRANTY DOES NOT APPLY, AND SMARTMOVING STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. HOWEVER, SMARTMOVING DOES NOT WARRANT THAT THE SERVICES OR ANY THIRD-PARTY PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR ANY THIRD-PARTY PRODUCTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND ANY THIRD-PARTY PRODUCTS AVAILABLE THEREFROM ARE PROVIDED “AS IS” AND SMARTMOVING DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.4 Customer represents, warrants, and covenants to SmartMoving that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by SmartMoving and used in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law. SmartMoving will employ security measures in accordance with the then current SmartMoving’s Privacy Policy hosted at www.smartmoving.com/privacy-policy or as otherwise made available through the SmartMoving website.
8. INDEMNITY
8.1 SmartMoving shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided SmartMoving is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; SmartMoving will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by SmartMoving, which include Third-Party Products, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Customer, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by SmartMoving to be infringing, SmartMoving may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
8.2 Customer shall indemnify, defend, and hold harmless SmartMoving and its officers, directors, employees, agents, successors, and assigns (each, a “SmartMoving Indemnitee”) from and against any and all losses incurred by such SmartMoving Indemnitee resulting from any action by a third party that arise out of or result from, or are alleged to arise out of or result from: (i) Customer Data, including any processing of Customer Data by or on behalf of SmartMoving in accordance with this Agreement; (ii) any other materials or information provided by or on behalf of Customer, including SmartMoving’s compliance with any specifications or directions provided by or on behalf of Customer to the extent prepared without any contribution by SmartMoving; or (iii) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement.
8.3 Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to Section 8.1 or 8.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at Indemnitor’s sole cost and expense. Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If Indemnitor fails or refuses to assume control of the defense of such Action, Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such action after giving notice to Indemnitor, in each case in such manner and on such terms as Indemnitee may deem appropriate. Indemnitee’s failure to perform any obligations under this Section 8.3 will not relieve Indemnitor of its obligations under this Section 8, except to the extent that Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
9. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, SMARTMOVING AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND SMARTMOVING’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO SMARTMOVING FOR THE SERVICES UNDER THIS AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SMARTMOVING HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. PUBLICITY
Each party hereby grants to the other party a limited, revocable license to use the party’s name and related indicia in the other party’s lists of current customers or vendors in promotional and marketing materials. In addition, Customer authorizes SmartMoving to provide its name and contact information to other SmartMoving customers as part of any referral network offered by SmartMoving as a customer resource. This provision shall survive termination or expiration of this Agreement.
11. MISCELLANEOUS
11.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.2 This Agreement is not assignable, transferable or sublicensable by Customer except with SmartMoving’s prior written consent. SmartMoving may transfer and assign any of its rights and obligations under this Agreement without consent.
11.3 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. SmartMoving may revise and update this Terms of Service from time to time in SmartMoving’s sole discretion. All changes are effective immediately when SmartMoving notifies the Customer, and shall apply to all access to and use of the Services thereafter. Customer’s continued use of the Services following such notification means that Customer accepts and agrees to the changes.
11.4 No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind SmartMoving in any respect whatsoever.
11.5 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
11.6 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
11.7 This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions.
11.8 ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS CONTRACT, OR THE BREACH THEREOF, SHALL BE SETTLED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION IN DALLAS, TEXAS IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES APPLYING TEXAS LAW, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THERE.
