Terms of Service and License Agreement

TERMS AND CONDITIONS OF SERVICE

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF SERVICE (THE “TERMS” OR “AGREEMENT”) CAREFULLY BEFORE USING SMARTSOFT AND ITS PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY TEXT, DESCRIPTIONS, PRODUCTS, WEBSITE, SOFTWARE, APPLICATION, GRAPHICS, PHOTOS, SOUNDS, VIDEOS, INTERACTIVE FEATURES, SERVICES AND ANY OTHER CONTENT AVAILABLE THEREON OR THERETO, NOW OR IN THE FUTURE, (COLLECTIVELY, AND TOGETHER WITH THE SITE, THE “SERVICE”) SO THAT YOU ARE AWARE OF YOUR LEGAL RIGHTS AND OBLIGATIONS WITH RESPECT TO SERVICE AND SMARTSOFT (“SMARTSOFT”, “WE” OR “OUR”). We reserve the right, at our discretion, to modify these Terms. We will inform you of any such modifications by posting the latest changes on the Site. Your continued use of the Services following the posting of such changes will mean your acceptance of those changes.

GENERAL TERMS OF SERVICE

By visiting and accessing and using the Service, including without limitation any of the content thereon, you consent to these Terms and any subsequent changes to these Terms and acknowledges that you have read and understood our  privacy policy. In addition, certain content or features of the Service may be subject to additional terms or rules which will be posted in connection with such content or features; all such terms and rules are incorporated into these Terms. If you do not agree, you may not use the Service including the applicable content or feature. Your right to use the Service is expressly conditioned upon your assent to all of these Terms, to the exclusion of all other terms. The Service is not intended for minors in any jurisdiction and you hereby certify that if you are an individual, you are of legal age to form a binding contract. If you are accessing or using the Service on behalf of an entity, you represent and warrant that you have authority to bind the entity to these Terms. You also certify that you are legally permitted to access and use the Service, and take full responsibility for such access and use. You are solely responsible for complying with all laws, rules and regulations applicable to your access and use of the Service. SMARTSOFT may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time.

SERVICE USE LICENCE AND ACCESS

SMARTSOFT hereby grants you a personal, limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and use the Service subject and in accordance with these Terms and provided that you comply with and refrain from the following;  no licenses or rights are granted to you by implication or otherwise, except for the licenses and rights expressly granted to you herein.

• Copy, modify, distribute, transmit, publicly display, publicly perform or create derivative works of any portion of the Service;
• Circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any part of the Service;
• Frame, hyper-link, or otherwise interfere with or in any manner disrupt, circumvent, overburden or compromise any part of the Service;
• Automate access to the Service, including, without limitation, through the use of APIs, bots, scrapers or other similar devices or mechanisms.
• Use the Service (including, but not limited to, any features or systems provided by or available through the Service) or any content thereon to promote, conduct, or contribute to activities that in SMARTSOFT’s sole discretion are fraudulent, obscene, pornographic, commercial, inappropriate or illegal, or which promotes hatred towards any group of people;
• Disrupt servers or networks connected to the Service or interfere with the access, use or enjoyment of this Service by others, including, but not limited to, causing greater demand on the Service than is deemed reasonable by SMARTSOFT;
• Use any method to intercept or expropriate any system data or information from the Service;
• Use any robot, spider, other automatic device, or manual process to crawl, index, or copy the Service or the content contained herein;
• Decompile, disassemble, reverse engineer or otherwise attempt to discover any source code or underlying ideas or algorithms of the Service;
• Attempt to gain unauthorized access to the Service, computer systems or networks;
• Link, upload, post, email, transmit or otherwise make available any content that (a) you do not have a right to make available under any law, or under any contractual or fiduciary relationships, (b) infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
• Collect or harvest any personally identifiable information from the Service;
• Use the communication systems provided by the Service for any commercial solicitation purposes, or link, upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation in connection with the Service;
• Link, upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, viruses, malware, bots, files or programs designed to interrupt, damage, disable, overburden, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
• Interfere with, damage, disable, overburden, impair, destroy, limit the functionality of or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies of networks connected to the Service;
• Violate any applicable local, state, national or international law, rule or regulation, or harm SMARTSOFT or any other person or entity; or
• Allow or facilitate any third party to do any of the foregoing.

SMARTSOFT will have the right to terminate your access to the Service, in its sole discretion, immediately and with or without cause. SMARTSOFT may, in its sole discretion and at any time, in any way, for any reason, change or discontinue any part of the Service. Without derogating from the above, you are solely responsible and liable for any activity by any person who uses the Service on your behalf. You agree to immediately notify SMARTSOFT of any unauthorized use suspected by you or any other breach of security known or suspected by you.

ACCESS TO SERVICES; AVAILABILITY OF THE SERVICES

You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to or access or otherwise use the Service, including, without limitation, modems, hardware, software, internet service and telecommunications capacity. You shall be solely responsible for ensuring that such equipment and ancillary services are compatible with the Service.

The Service may be interrupted, including for maintenance, repairs, upgrades, or network or equipment failures. We may discontinue some or all of our Service, including certain features and the support for certain devices and platforms, at any time. Events beyond our control may affect our Service, such as events in nature and other force majeure events.

Mobile Services

The Service may be provided or made available via a mobile device through the download and installation of an application on a mobile device (collectively, “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing or using the Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.

INTELLECTUAL PROPERTY RIGHTS

As between SMARTSOFT and you, SMARTSOFT is the sole owner of the Service, including without limitation, all applicable U.S. and non-U.S. copyrights, patents, trademarks, and trade secrets, and other intellectual property rights in connection thereto. SMARTSOFT further owns all rights to its logos and trademarks used in connection with the Service. All other logos and trademarks appearing on or through the Service are the property of their respective owners. SMARTSOFT reserves all rights not expressly granted in and to the Service. You acknowledge that you do not acquire any ownership rights to the Service. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on or through the Service.

DISCLAIMER OF WARRANTIES

THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND RESPONSIBILITY. NEITHER SMARTSOFT NOR ITS RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, OR AS TO THE ACCURACY, TIMELINESS, COMPLETENESS, OR ADEQUACY OF ANY INFORMATION, PRODUCT OR SERVICE PROVIDED THERETO. FURTHERMORE, SMARTSOFT DOES NOT WARRANT, ENDORSE OR GUARANTEE ANY CONTENT, PRODUCT, OR SERVICE THAT IS FEATURED OR ADVERTISED ON THE SERVICE. WHILE WE MAKE REASONABLE EFFORTS TO ENSURE THAT THE SERVICE WILL FUNCTION AS CLAIMED, SMARTSOFT DOES NOT GUARANTEE THAT THE SERVICE WILL BE FREE OF BUGS, SECURITY BREACHES, VIRUS ATTACKS AND THE LIKE, OR THAT IT WILL ALWAYS BE AVAILABLE. THE SERVICE WILL OCCASIONALLY BE UNAVAILABLE FOR ROUTINE MAINTENANCE, UPGRADING, OR OTHER REASONS. IN ADDITION, YOU AGREE THAT SMARTSOFT WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO ITS USERS, INCLUDING THOSE THAT MAY RESULT FROM TECHNICAL PROBLEMS OF THE INTERNET, SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS, ETC. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY THE SERVICE, INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY DATA OR INFORMATION, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.

LIMITATION OF LIABILITY

IN NO EVENT WILL SMARTSOFT, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, AFFILIATES, SUCCESSORS, ASSIGNS, THIRD PARTY CONTENT PROVIDERS AND LICENSORS BE LIABLE TO ANY PARTY FOR ANY INDIRECT, DIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, HARM TO GOODWILL OR REPUTATION), OR ANY OTHER DAMAGES ARISING IN ANY WAY OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE SERVICE EVEN IF SMARTSOFT SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE. IN ANY EVENT AND WITHOUT LIMITING THE GENERALITY OF THIS SECTION TO THE EXTENT PERMITTED BY LAW, YOU AGREE THAT SMARTSOFT’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES AND LOSSES FOR ACCESSING AND USING THE SERVICE SHALL NOT EXCEED THE AGGREGATE AMOUNT PAID BY YOU TO SMARTSOFT, IF ANY, IN THE ONE (1) MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, SMARTSOFT’S LIABILITY (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, AFFILIATES, SUCCESSORS, ASSIGNS, THIRD PARTY CONTENT PROVIDERS AND LICENSORS) SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. YOU AND SMARTSOFT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

INDEMNIFICATION

By agreeing to use the Service, you agree to defend, indemnify and hold SMARTSOFT, its affiliates and successors, and their respective owners, officers, directors, employees and agents harmless from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses, including but not limited to reasonable attorneys’ fees, arising in any way from (i) your use of the Service; (ii) your violation of these Terms; or (iii) your violation of any third party right, including without limitation any intellectual property, publicity or privacy right.

LINKED SITES AND APPLICATIONS

The Service may contain features that may link you to third parties’ applications and/or web sites (“Linked Applications & Sites”). The Linked Applications & Sites are not reviewed, owned, controlled or examined by SMARTSOFT in any way. SMARTSOFT has no control over those Linked Applications & Sites, and assumes no responsibility for the content, privacy policies, or practices of any of those Linked Applications & Sites, or any additional links contained therein. In addition, SMARTSOFT will not and cannot censor or edit the content of any Linked Applications & Sites. The offering of these features does not imply SMARTSOFT’s endorsement of, or association with, the Linked Applications & Sites and by using the Service, you expressly release SMARTSOFT from any and all liability arising from your use of any Linked Applications & Sites. It is your sole responsibility to comply with the appropriate terms of service of the Linked Applications & Sites as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of such Linked Applications & Sites and any content contained thereon. We encourage you to read the terms and conditions, term of use and privacy policy of the Linked Applications & Sites. In no event shall SMARTSOFT be liable to anyone for any damage arising from or occasioned by the creation or use of the Linked Applications & Sites or the information or material accessed-through these Linked Applications & Sites. All title and intellectual property rights in and to the content of any third party web site which may be linked to or viewed in connection with this Service is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content except as allowed by such third party.

ASSIGNMENT

SMARTSOFT may transfer, assign sublicense or pledge in any manner whatsoever to a third party, any of its rights and obligations under this Agreement, without notifying you or receiving your consent. You shall not transfer, assign, sublicense nor pledge in any manner whatsoever, any of your rights or obligations under this Agreement.

APPLICABLE LAWS / JURISDICTION

You agree that the laws of Ukraine, excluding its conflicts-of-law rules, shall govern these Terms. Please note that your use of the Service may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with SMARTSOFT or relating in any way to your use of the Service resides in the courts of Kyiv, Ukraine. You further agree and expressly consent to the exercise of personal jurisdiction in the courts of Kyiv, Ukraine, in connection with any dispute or claim involving SMARTSOFT or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers.

MISCELLANEOUS

These Terms constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. The provisions of these Terms are for the benefit of SMARTSOFT, its parent, subsidiaries, other affiliates and its third party content providers and licensors and each shall have the right to assert and enforce such provisions directly or on its own behalf. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import