Terms of Service

SmartMoving™
Terms of Service

Last modified: March 18, 2025

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 (the “SaaS Offering”) and any additional services provided by or on behalf of SmartMoving (collectively with the provision of the SaaS Offering, the “Services”).

1.2 The various subscriptions to the SaaS Offering available from SmartMoving are described on SmartMoving’s Services Description page located at www.smartmoving.com. If Services are purchased on the SmartMoving website then an order summary will be visible at the point of purchase and an invoice will be sent summarizing the purchase. Alternatively, purchased Services may be set forth in an order signed by both Parties or an agreement by the Parties documented in an email confirmation sent by SmartMoving. Regardless of how the Services are purchased, the subscription and usage rights the Customer has purchased are always visible within the Services under “Subscription Details” (the “Scope of Service”). 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 Scope of Service and the terms and conditions herein. The total number of Authorized Users may not exceed the number purchased by Customer or for whom SmartMoving has provided complimentary licenses, as evidenced on the Subscription Details page. Authorized Users may only access or use the Services for the benefit of Customer and Customer is responsible for ensuring that Authorized Users comply with the terms of this Agreement.

1.4 Customer may purchase, upon written approval of SmartMoving, email being sufficient, additional Services that SmartMoving may offer. Fees for any additional Services may be billed immediately and shall be prorated for the then-applicable billing period, and thereafter included as appropriate in any subsequent Renewal Terms (as defined in Section 6.2).

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.

1.6 SmartMoving may 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, including but not limited to the failure to make any payments when due, 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.

1.7 Updated features and functions for Customer’s Scope of Service that are generally made available by SmartMoving during the Term will be provided to Customer at no additional charge. Customer is not entitled to additional features and functions that are not within the Customer’s Scope of Service. SmartMoving reserves the right to discontinue any particular service, feature, or function upon notice to Customer.

1.8 Customer’s use of the Services is governed by this Agreement as well as the Acceptable Use Policy located at www.smartmoving.com/acceptable-use-policy. 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 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 may be 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. Customer hereby authorizes SmartMoving to disclose information about Customer and its Authorized Users, and allow third-party providers to use and process such information, for the limited purpose of providing Third-Party Products to Customer and its Authorized Users, whether or not such providers are disclosed to Customer or white labeled. 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.

SmartMoving may from time to time make available to Customer certain trial, beta, or similar introductory offerings (“Beta Services”), in which case Customer may use such Beta Services for internal evaluation for the duration of time identified by SmartMoving in the offering. 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 only 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. The features and functionality of the Beta Services are 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 or industry regulations, Customer is solely responsible and fully liable for: (i) ensuring that all use of the Services and messaging is fully compliant with applicable laws and regulations; (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: (a) 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 will employ security measures in accordance with the then-current SmartMoving’s Privacy Policy hosted at www.smartmoving.com/privacy-policy (the “Privacy Policy”) or as otherwise made available through the SmartMoving website. SmartMoving’s collection and use of personal information will be as described in the Privacy Policy.

3.2 Customer has and will retain sole responsibility for: (a) all data or information submitted through the SaaS Offering (the “Customer Data”), including its accuracy, 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.

4. CONFIDENTIALITY; PROPRIETARY RIGHTS

4.1 From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that either (i) is marked, designated, or otherwise identified as "confidential" or (ii) a reasonable person would know was confidential or proprietary based upon markings, the nature of the information, or the manner of disclosure (collectively, "Confidential Information"). Without limiting the foregoing, SmartMoving’s “Confidential Information” shall include all features and functionality of the Services or SmartMoving Materials (as defined below) and the results of any benchmarking or other tests of the SmartMoving Materials. Confidential Information does not include information that, at the time of disclosure is: (a) publicly available; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees, contractors, or other third-parties who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party's Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

4.2 Customer shall own all right, title and interest in and to the Customer Data. Customer hereby grants to SmartMoving a non-exclusive, royalty-free and fully-paid, term-limited, sublicensable (through multiple tiers), worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be useful or necessary for SmartMoving to provide the Services to Customer or improve SmartMoving’s offerings and to create Deidentified Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that: (i) Customer has the right to grant the licenses in this Agreement for the Customer Data; and (ii) the Customer Data, the provision of Customer Data to SmartMoving under this Agreement, and the use of the Customer Data as permitted by this Agreement does not and will not violate the privacy rights, publicity rights, copyright rights, or other rights of any person or entity. "Deidentified" with regard to data or information, means data or information that neither identifies nor provides a reasonable basis to identify a company or an individual, where, without limitation, the following identifiers have been removed: company names and the names of individuals, addresses, account numbers, other identification numbers, phone numbers, e-mail address(es) and any other information which could reasonably be anticipated to identify, when taken in the aggregate, a specific company, organization or individual.

4.3 SmartMoving, or its third-party licensors, shall own and retain all right, title and interest in and to (a) the SmartMoving Materials, and (b) all intellectual property rights related to any of the foregoing. Nothing in this Agreement grants the Customer 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. If Customer provides any suggestions, ideas, enhancement requests, feedback (including identifying potential errors and improvements), recommendations or other information relating to the Services to SmartMoving (collectively “Feedback”), then SmartMoving may use the Feedback without payment or restriction. “SmartMoving Materials” means the Services, Documentation, and SmartMoving’s systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by SmartMoving in connection with the Services or otherwise comprise or are related to the Services or SmartMoving’s systems.

4.4 “SmartMoving Data” means data or information created, collected, or compiled by or on behalf of SmartMoving, including any information, data, or other content derived from SmartMoving's monitoring of Customer's access to or use of the Services as well as Deidentified Customer Data, but does not include Customer Data that is not Deidentified. Notwithstanding anything to the contrary in this Agreement, SmartMoving may collect, compile, and create SmartMoving Data including SmartMoving Data created with Deidentified Customer Data. As between SmartMoving and Customer, all right, title, and interest in SmartMoving Data, and all intellectual property rights therein, belong to and are retained solely by SmartMoving. To the extent Customer has any intellectual property rights in or to the SmartMoving Data, Customer hereby grants to SmartMoving a non-exclusive, irrevocable, perpetual, sublicensable (through multiple tiers), assignable, worldwide, royalty-free and fully paid license to reproduce, distribute, modify, and otherwise use and display the SmartMoving Data for any and all purposes. Customer agrees that SmartMoving may make Deidentified Customer Data available to third parties and use Deidentified Customer Data for any and all purposes during and after the Term.

4.5 After termination subject to Section 6, SmartMoving will make, for a fee, all Customer Data stored within SmartMoving available to Customer for electronic retrieval for up to sixty days after termination.

5. PAYMENT OF FEES

5.1 Customer will pay SmartMoving the then-applicable fees described at the point of purchase, for any additional Services or Users added subsequently at the Customers’ request, and any usage-based fees (collectively, the “Fees”). Except for any usage-based Services, all Fees for Services will be charged by SmartMoving on a recurring basis (the “Recurring Fees”). All usage-based, non-recurring fees, such as for additional messages sent via the SaaS Offering, shall be charged in arrears based on usage. Such charges will be due and charged at the end of the month in which they are incurred. Recurring Fees may be payable by Customer on a monthly, quarterly, or annual recurring basis as set forth at the point of purchase. SmartMoving reserves the right to change the Fees or applicable charges and to institute new charges and Fees effective at the end of the then-current Initial Term or Renewal Term by providing written notice of the price change at least sixty days prior to the expiration of the then-current Term. Such notice may be sent by email. Fees paid are non-refundable. No refunds or credits shall be issued for any undeliverable messages sent via the Services.

5.2 Customer authorizes SmartMoving to charge Customer’s credit card, invoice Customer, or pull directly from Customer’s designated bank account all Fees due under this Agreement. 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.

5.3 All Recurring Fees are due in advance of Services being performed. If Customer fails to make any payment when due, without limiting SmartMoving's other rights and remedies: (i) SmartMoving may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse SmartMoving for all costs incurred by SmartMoving in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; (iii) SmartMoving may suspend Customer's and its Authorized Users' access to any portion or all of the Services; and (iv) if Customer’s payments are more than thirty days overdue then SmartMoving (upon written notice) may accelerate all remaining Fees that are due or would have come due for the remainder of the then-current Term, and all such amounts will be due immediately and may be charged to Customer’s method of payment as described in Section 5.4 below. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on SmartMoving's income.

5.4 All amounts due under this Agreement shall be paid by credit card or other payment method agreed to by SmartMoving. Customer hereby authorizes SmartMoving to charge the payment method for all applicable Fees and Taxes for each billing period during the Term. Customer further authorizes SmartMoving 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, an invoice is unpaid, or SmartMoving otherwise does not receive payments of Fees when due 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, at its sole discretion, (A) immediately terminate this Agreement, (B) suspend Customer’s access to the Services, and/or (C) continue to charge Customer’s credit card, invoice Customer, or pull directly from Customer’s designated bank account, all Fees due, and that would have become payable had the Agreement remained in effect until expiration of the then-current Term, regardless of whether any termination or suspension occurred. 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 offer free trial periods to the Services or particular features within the Services (each a “Free Trial Period”). Once a Free Trial Period ends, SmartMoving will begin billing Customer’s payment method for Recurring Fees (plus any applicable taxes), unless Customer cancels prior to the end of the Free Trial Period. Customer may cancel the Free Trial Period at any point prior to the expiration of the Free Trial Period specified at the point of checkout (or otherwise between the parties in writing) by providing written notice to SmartMoving, email being sufficient.

6.2 Subject to earlier termination as provided below, this Agreement begins as of the Effective Date and continues for the initial term, which may be one month, three months, one year, or two years as specified at the point of purchase (the “Initial Term”), and shall automatically renew for additional periods of the same duration as the Initial Term (each, a “Renewal Term”), unless either party provide written notice of non-renewal to the other party at least thirty days before the end of the then-current Initial or Renewal Term. Any Free Trial Period, the Initial Term, and any Renewal Term shall collectively be referred to as the “Term”. Any notice of non-renewal by Customer must be sent via email to billing@SmartMoving.com. BY ENTERING INTO THIS AGREEMENT, CUSTOMER HEREBY CONSENTS TO THE AUTOMATIC RENEWAL OF THE INITIAL TERM AND ANY RENEWAL TERM THEREAFTER AS DESCRIBED IN THIS SECTION 6.2. For the avoidance of doubt, the Initial Term shall be the period of time set forth at the point of sale even if Customer chooses to pay the Recurring Fees on a monthly basis or any other basis shorter than the Initial Term. This Agreement may not be terminated by Customer other than as expressly permitted in Section 6.3 below.

6.3 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 remains uncured thirty days after the breaching party receives written notice of such breach in reasonable detail, 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.

6.4 All sections of this Agreement which by their nature should survive termination of this Agreement will survive termination of this Agreement, 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 11.

6.5 Upon termination of this Agreement:

Customer shall immediately cease all use of any Services and any Third-Party Products (and SmartMoving may disable any such access to the foregoing), and (A) within thirty days return to SmartMoving, or at SmartMoving's written request destroy, all documents and tangible materials containing, reflecting, incorporating SmartMoving's Confidential Information; (B) permanently erase all of SmartMoving’s Confidential Information from all systems Customer directly or indirectly controls; and (C) confirm to SmartMoving in writing that it has complied with the requirements of this Section 6.6(iii);
notwithstanding anything to the contrary in this Agreement, the Receiving party may retain the Disclosing party's Confidential Information solely to the extent and for so long as required by applicable law or in its backups, archives, and disaster recovery systems in accordance with a bona fide document retention policy and all information and materials described in this Section 6.6(ii) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;
if Customer terminates this Agreement pursuant to Section 6.3 for SmartMoving’s uncured material breach, Customer will be relieved of any obligation to pay any unpaid Fees for the remainder of the then-current Term after the effective date of such termination;
if SmartMoving terminates this Agreement, all Fees that would have become payable had the Agreement remained in effect until expiration of the then-current Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of SmartMoving's invoice therefore.

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) 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 (iii) 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, templates, and information within the Services. Any and all content, templates, and 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, templates, 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 use of such materials by Customer or any third party.

7.3 SmartMoving shall use reasonable efforts consistent with prevailing industry standards to maintain and perform the Services in a good and workmanlike manner. CUSTOMER’S EXCLUSIVE REMEDY, AND SMARTMOVING’S ENTIRE LIABILITY, FOR ANY BREACH OF THIS SECTION 7 OR THE FAILURE OR UNAVAILABILITY OF THE SERVICES, IS LIMITED TO, AT SMARTMOVING’S OPTION, THE REPAIR OF ANY MATERIAL, REPRODUCIBLE IMPAIRMENT TO THE FEATURES AND FUNCTIONALITY IN THE SERVICES (OR DEFECTIVE PORTION OF THE SERVICES), REPERFORMANCE OF THE SERVICES, OR REFUNDING ANY FEES PAID TO SMARTMOVING FOR THE DEFICIENT SERVICES FOR THE REMAINDER OF THE THEN-CURRENT TERM, IN WHICH CASE, CUSTOMER SHALL IMMEDIATELY RETURN AND CEASE USE OF THE SERVICES.

7.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SMARTMOVING MATERIALS ARE PROVIDED “AS IS” AND SMARTMOVING EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SMARTMOVING MATERIALS, WHETHER EXPRESS, IMPLIED, ARISING BY LAW, USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, SMARTMOVING DOES NOT WARRANT (I) THAT THE SMARTMOVING MATERIALS OR THE SERVICES WILL BE FREE FROM ANY INTERRUPTIONS, DELAYS, INACCURACIES, SERVER DOWN-TIME, ERRORS, OR OMISSIONS, (II) THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY RECEIVING OR USING THE SMARTMOVING MATERIALS, OR (III) THAT THE SMARTMOVING MATERIALS WILL MEET CUTOMER’S OR ANY OTHER PARTY’S REQUIREMENTS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE SMARTMOVING MATERIALS, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY, CONDITION, REPRESENTATION, OR GUARANTY BY SMARTMOVING.

8. INDEMNITY

8.1 Provided that Customer complies with the procedures set forth in Section 8.3 and subject to the exclusions below, SmartMoving will, at SmartMoving’s expense, defend and/or settle any claim, suit or proceeding brought by a third party against Customer or Customer’s officers, directors, employees, agents and affiliates (collectively, “Customer Parties”) alleging that the SaaS Offering as provided by SmartMoving (excluding any Third-Party Products) infringes any copyright, trademark, trade secret or patent protectable under U.S. law that is issued as of the date of this Agreement. In addition, SmartMoving will pay any judgment awarded against Customer or any settlement amount agreed to by SmartMoving for the indemnified claim. THIS INDEMNITY IS THE CUSTOMER’S EXCLUSIVE REMEDY AND SMARTMOVING’S SOLE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.

SmartMoving will have no obligation under this Section 8.1 with respect to any claim of infringement arising out of or based upon: (i) Customer Data, (ii) use of the Services in any manner other than as expressly authorized and contemplated in this Agreement and the SmartMoving documentation, (iii) the combination of the Services with any other software, hardware, material, or processes, or (iv) Customer otherwise causing the Services to become infringing (collectively, the “Indemnity Exclusions”). If SmartMoving reasonably believes that a claim of infringement relating to the Services may arise, SmartMoving may, without limiting SmartMoving’s indemnity obligations hereunder, procure the right for Customer to continue to use the Services or modify the Services in a functionally equivalent manner so as to avoid such claim of infringement. If the foregoing options are not available on commercially reasonable terms and conditions, SmartMoving may immediately terminate the Agreement and refund to Customer a prorated amount of prepaid fees for access to the Services actually paid by Customer for the remainder of the then-current term.

8.2 Provided that SmartMoving complies with the procedures set forth in Section 8.3, Customer will, at Customer’s expense, defend and/or settle any claim, suit or proceeding brought by a third party against SmartMoving or SmartMoving’s officers, directors, employees, agents and affiliates (collectively, “SmartMoving Parties”) and arising out of or related to: (i) Customer Data; (ii) the Indemnity Exclusions, (iii) 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; or (iv) any Customer breaches of this Agreement. In addition, Customer will pay any judgment awarded against SmartMoving or any settlement amount agreed to by Customer for the indemnified claim.

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. Indemnitee shall grant Indemnitor, and Indemnitor shall promptly assume, sole control of the defense of the claim 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 indemnified claim 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. 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

9.1 TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE: (I) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE SMARTMOVING PARTIES EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO SMARTMOVING UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY HEREUNDER; (II) IN NO EVENT SHALL ANY SMARTMOVING PARTY BE LIABLE TO ANY CUSTOMER PARTY OR THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, LOSS OF DATA, OR LOST PROFITS DAMAGES OF ANY KIND (INCLUDING ANY LOST REVENUE, PROFITS, SAVINGS, BUSINESS OPPORTUNITIES, USE, OR GOODWILL) HOWEVER ARISING.

9.2 THE LIMITATIONS OF LIABILITY ABOVE SHALL APPLY: (A) TO ALL CLAIMS IN THE AGGREGATE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT; (B) REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UNDER WHICH THE CLAIM ARISES, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY, OR OTHERWISE; (C) REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE OR SMARTMOVING HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES; AND (D) REGARDLESS OF IF THE REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY IS AN AGGREGATE LIMIT AND WILL NOT BE INCREASED BY THE EXISTANCE OF MORE THAN ONE CLAIM.

9.3 THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF SMARTMOVING’S BARGAIN HEREUNDER, AND CUSTOMER ACKNOWLEDGES THAT SUCH PROVISIONS REPRESENT A REASONABLE ALLOCATION OF RISK. Since some states do not allow certain limitations or exclusions of warranties or liability, some or all of the limitations and exclusions set forth in this Section may be held unenforceable as applied to Customer. In such cases, SmartMoving’s liability shall be limited to the greatest extent permitted under applicable law.

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 invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

11.2 This Agreement is not assignable or transferable 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 with regard to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. SmartMoving may revise and update this Terms of Service from time to time in SmartMoving’s sole discretion. All changes are effective upon start of the next Renewal Term and shall apply to all access to and use of the Services thereafter. Renewal of the Term and Customer’s continued use of the Services following such modification means that Customer accepts and agrees to the changes. While SmartMoving may provide notice of updates to these Terms it is the Customer’s responsibility to review the latest terms prior to deciding whether to renew the Term. Except as set forth in this Section, no amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

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 IS GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THOSE OF THE STATE OF TEXAS. ANY LEGAL SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE LICENSES GRANTED HEREUNDER WILL BE INSTITUTED EXCLUSIVELY IN THE FEDERAL COURTS OF THE UNITED STATES OR THE COURTS OF THE STATE OF TEXAS IN EACH CASE LOCATED IN DALLAS COUNTY TEXAS, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION, OR PROCEEDING. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY DISCLAIMED. Each party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal action, proceeding, cause of action or counterclaim arising out of or relating to this agreement, including any exhibits, schedules, and appendices attached to this agreement, or the transactions contemplated hereby. Each party certifies and acknowledges that (a) no representative of the other party has represented, expressly or otherwise, that the other party would not seek to enforce the foregoing waiver in the event of a legal action, (b) it has considered the implications of this waiver, (c) it makes this waiver knowingly and voluntarily, and (d) it has decided to enter into this agreement in consideration of, among other things, the mutual waivers and certifications in this section.

11.8 In no event shall either party be liable, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemic or other illness, explosion, war, terrorism, invasion, riot or other civil unrest, cyber attacks, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

11.9 Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.

11.10 Each of the Documentation and the software components that constitute the Services is a "commercial product" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.

11.11 Except as otherwise set forth in this Agreement, the remedies set forth in this agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.

SmartMoving™ Terms of Service