Thank you for selecting the Services offered by SmartBooks Technologies, LLC (referred to as "SmartBooks", "we", "our", or "us"). Review these Terms of Service ("Agreement") thoroughly. This Agreement is a legal agreement between you and SmartBooks. By accepting electronically, creating an account, installing, accessing or using the Services (as defined in Section A.1 below), you agree to these terms. If you do not agree to this Agreement’s terms and conditions, then you may not use the Services and must contact SmartBooks immediately via email to firstname.lastname@example.org or by such other contact method as we may specify.
A. GENERAL TERMS
This Agreement describes the terms governing your use of the SmartBooks online services provided to you on our www.smartbooksgenie.com website (the “Website”), including the overall SmartBooks Genie software application (the “Software”), modules, reports, updates and new releases, and all other content (collectively, the "Services"). This Agreement includes by reference:
● SmartBooks' Privacy Statement provided to you on the Website or provided to you otherwise.
● Additional Terms and Conditions, which may include those from third parties.
● Any terms provided separately to you for the Services, including, but not limited to, product or program terms, ordering, activation, and payment terms.
2. YOUR RIGHTS TO USE THE SERVICES
2.1 The Software and other aspects of the Services are protected by copyright, trade secret, and other intellectual property laws. You are only granted the right to use the Services and only for the purposes described by SmartBooks on the Website or in this Agreement. SmartBooks reserves all other rights in the Services. Until termination of this Agreement and as long as you meet any applicable payment obligations and comply with this Agreement, SmartBooks grants to you a limited, nonexclusive, nontransferable right and license to use the Services.
2.2 You agree not to use, nor permit any third party to use, the Services or content in a manner that violates any applicable law, regulation or this Agreement. You agree that you will not:
● Provide access to or give any part of the Software or any other aspect of the Services to any third party or any other legal entity.
● Reproduce, modify, copy, deconstruct, sell, trade or resell the Services.
● Make the Services available on any file-sharing or application hosting service.
3. PAYMENT. For Services offered on a payment or subscription basis, the following terms apply, unless SmartBooks notifies you otherwise in writing:
4. USE WITH YOUR MOBILE DEVICE
Use of these Services may be available through a compatible mobile device meeting certain requirements. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees as well as the terms of your agreement with your mobile device and telecommunications provider.
SMARTBOOKS MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO:
5. YOUR PERSONAL INFORMATION. You can view SmartBooks's Privacy Statement provided with the Services and on the Website for the Services. You agree to the applicable SmartBooks Privacy Statement, and any changes published by SmartBooks. You agree that SmartBooks may use and maintain your data according to the SmartBooks Privacy Statement, as part of the Services. You give SmartBooks permission to combine information you enter or upload for the Services with that of other users of the Services and/or other SmartBooks services. For example, this means that SmartBooks may use your and other users' non-identifiable, aggregated data to improve the Services or to design promotions and provide ways for you to compare business practices with other users. SmartBooks is a global company and may access or store personal information in multiple countries, including countries outside of your own country to the extent permitted by applicable law.
6.1 You are responsible for your content. You are responsible for all data and other materials ("Content") entered, uploaded, posted or stored through your use of the Services. You grant SmartBooks a worldwide, royalty-free, non-exclusive license to host and use any Content provided through your use of the Services. Archive your Content frequently. You are responsible for any lost or unrecoverable Content. You must provide all warnings, information and disclosures required by applicable law and/or regulations about the Content or your use of the Services. SmartBooks is not responsible for the Content or data you submit through the Services nor for backup of Content.
You agree not to use, nor permit any third party to use, the Services to enter, upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following:
6.2 Community forums. The Services may include a community forum or other social features to exchange Content and information with other users of the Services and the public. SmartBooks does not support and is not responsible for the content in these community forums. You must keep your communications respectful when you interact with other users. Do not reveal information that you do not want to make public. Users may post hypertext links to content of third parties for which SmartBooks is not responsible.
6.3 SmartBooks may freely use feedback you provide. You agree that SmartBooks may use your feedback, suggestions, or ideas in any way, including in future modifications of the Services, other products or services, advertising or marketing materials. You grant SmartBooks a perpetual, worldwide, fully transferable, sublicensable, non-revocable, fully paid-up, royalty free license to use the feedback you provide to SmartBooks in any way.
6.4 SmartBooks may monitor your Content. SmartBooks may, but has no obligation to, monitor content on the Services. We may disclose any information necessary to satisfy our legal obligations, protect SmartBooks or its customers, or operate the Services properly. SmartBooks, in its sole discretion, may refuse to post, remove, or refuse to remove, any Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
7. DERIVATIVE WORKS
7.1 The Software is licensed, not sold to you or owned by you, and SmartBooks reserves all rights to the Software not expressly granted by SmartBooks, whether by implication, estoppel, or otherwise. This license does not give you any right to, and you may not:
i. circumvent or bypass any technological protection measures in or relating to the Software or any other aspect of the Services;
ii. disassemble, decompile, decrypt, hack, emulate, exploit, or reverse engineer any of the Software or other aspect of the Services that is included in or accessible through the Services, except and only to the extent that the applicable copyright law expressly permits doing so;
iii. separate components of the Software or other aspects of the Services for use on different devices;
iv. publish, copy, rent, lease, sell, export, import, distribute, or lend the Software or the Services, unless SmartBooks expressly authorizes you to do so;
v. use the Software as a basis for creating other software that is substantially similar to the Software or to its individual feature modules.
vi. transfer the Software, any Software licenses, or any rights to access or use the Services;
vii. use the Services in any unauthorized way that could interfere with anyone else’s use of them or gain access to any service, data, account, or network;
viii. enable access to the Services by unauthorized third-party applications.
7.2 You may not, directly or through any other person or entity, modify, change, hack, corrupt, copy, create substantially similar software, create any derivative software from, or cause any adverse effect to the Software, nor attempt to undertake any such actions with respect to the Software. In any event, ownership of any derivative works, if any, shall be unconditionally and exclusively owned by SmartBooks.
8. AVAILABILITY; ADDITIONAL TERMS
8.1 Service Interruptions. Scheduled and unscheduled interruptions may occur, and there is no warranty or guarantee of uninterrupted availability of the Services. Normal software or hardware upgrades are designed to cause a minimum amount of interruption to Services. During these interruptions, you may be unable to use some or all Services. You agree to cooperate with SmartBooks during interruptions, if assistance from you is necessary in order to restore the Services to working order. In addition, the Services, the Software, or any features in the Services or the Software, may be modified or suspended by SmartBooks at any time.
8.2 Service Downtime. Services are intended to be accessible 24x7x365. As with any online software, Services may be subject to occasional downtime, whether a specific Services module or the entire application. If such downtime for the entire application occurs, such that no Services are available for more than 5% of a billing period, SmartBooks will provide a pro-rated credit on the next invoice.
8.3 Force Majeure. Notwithstanding any provision contained in the Agreement, neither party will be liable to the other to the extent fulfillment or performance of any terms or provisions of the Agreement are delayed or prevented by revolution or other civil disorders; wars; strikes; labor disputes; electrical equipment or availability failure; fires; floods; acts of God; government action; third party failures; or, without limiting the foregoing, any other causes not within its control and which, by the exercise of reasonable diligence, it is unable to prevent. This clause will not apply to the payment of any sums due under the Agreement by either party to the other party.
8.4 SmartBooks does not give professional advice. SmartBooks is not in the business of providing legal, financial, accounting, tax, payroll, employee benefits, human resources, or other professional services or advice. To the extent any such information is referenced within the Services, it is deemed to be general contextual background information and not information specific to your business and not in any way advice specific to your business. Consult the services of a competent professional when you need this type of assistance.
8.5 We may tell you about other SmartBooks services. You may be offered other services, products, or promotions by SmartBooks ("Other Services"). Additional terms, conditions and fees may apply. With some Other Services, you may upload or enter data from your account(s) such as names, addresses and phone numbers, purchases, etc., to the Internet. You grant SmartBooks permission to use information about your business and experience to help us to provide the Other Services to you and to enhance the Services. You grant SmartBooks permission to combine your business data, if any, with that of others in a way that does not identify you or any individual personally. You also grant SmartBooks permission to share or publish summary results relating to research data and to distribute or license such data to third parties.
8.6 Communications. SmartBooks may be required by law to send you communications about the Services or any third party products to which you may have access while using the Services or through the Website (“Third Party Products”, and the vendors that supply them are called “Third Party Providers”). You agree that SmartBooks may send these communications to you via email or by posting them on our Website.
8.7 You will manage your passwords and accept updates. You are responsible for securely managing your password(s) for the Services and to contact SmartBooks if you become aware of any unauthorized access to your account. The Services may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve the Services. You agree to receive these updates.
8.8 Telephone Numbers. You may provide us with your telephone number as part of your customer record or registration or via other methods. You understand and agree that SmartBooks may use your telephone number for "multi-factor authentication" ("MFA"), to confirm your identity and help protect the security of your account. Part of the MFA identity verification process may involve SmartBooks sending text messages containing security codes to your telephone number. You agree to receive these texts from SmartBooks containing security codes as part of the MFA process. In addition, you agree that SmartBooks may send automated text messages and pre-recorded voice messages to the telephone number you provide for other limited purposes, including: providing you with important critical notices regarding your use of the Services, or fulfilling a request made by you through the Services.
9. DISCLAIMER OF WARRANTIES
9.1 As used in this Agreement, the term “Affiliate” means any parent entity, sister entity, or subsidiary, if any, of SmartBooks and any officer, director, owner or manager of SmartBooks. The use of the term “Affiliate” in this Agreement does not imply and may not be interpreted to imply that any Affiliate has any obligation, responsibility or role as a party under this Agreement.
9.2 YOUR USE OF THE SERVICES, SOFTWARE, AND CONTENT IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SERVICES AND ACCESS TO THE SOFTWARE ARE PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMARTBOOKS, ITS AFFILIATES, AND ITS THIRD PARTY PROVIDERS, LICENSORS, DISTRIBUTORS AND SUPPLIERS (COLLECTIVELY,"SUPPLIERS") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY: THAT THE SERVICES OR ANY ASPECT THEREOF, INCLUDING WITHOUT LIMITATION THE SOFTWARE, ARE FIT FOR A PARTICULAR PURPOSE; OF TITLE; OF MERCHANTABILITY; OF NO DATA LOSS; OF NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS; OR OF THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SERVICES. SMARTBOOKS AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SERVICES ARE SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU TO THE EXTENT OF ANY NON-WAIVABLE WARRANTIES IMPLIED BY LAW, ANY SUCH IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER.
9.3 SMARTBOOKS, ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS.
10. LIMITATION OF LIABILITY AND INDEMNITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF SMARTBOOKS, ITS AFFILIATES AND SUPPLIERS FOR ALL CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED IN THE AGGREGATE TO THE AMOUNT YOU PAID FOR THE SERVICES DURING THE MONTH PRIOR TO SUCH CLAIM (OR UP TO $10 IF SERVICES ARE FREE). SUBJECT TO ANY NON-WAIVABLE APPLICABLE LAW TO THE CONTRARY, SMARTBOOKS, ITS AFFILIATES AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; OR (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET SMARTBOOKS SYSTEMS REQUIREMENTS. THE ABOVE LIMITATIONS APPLY, EVEN IF SMARTBOOKS AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE AGGREGATE LIABILITY OF SMARTBOOKS AND ITS AFFILIATES AND SUPPLIERS AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE WEBSITE, THE SOFTWARE AND ANY OTHER ASPECT OF THE SERVICES AND ANY USE OF OR ACCESS TO THE WEBSITE, THE SOFTWARE AND/OR THE SERVICES.
You agree to indemnify and hold SmartBooks and its Affiliates and Suppliers harmless from any and all third party claims, losses, damages, liabilities, judgments, and expenses, including but not limited to reasonable attorneys' fees and costs, arising out of your access to or use of the Website, the Software or any other aspect of the Services, or breach of this Agreement (collectively called "Claims"). SmartBooks reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims, but such defense shall not vitiate or lessen your indemnification and hold harmless obligations. You agree to reasonably cooperate as requested by SmartBooks in the defense of any Claims.
11. CHANGES. We reserve the right to change this Agreement at any time, and the changes will be effective when posted through the Services, on our Website or when we notify you by other means. We may also change or discontinue the Services or any aspect thereof, in whole or in part. Your continued use of the Services after such a change or partial discontinuation will confirm your agreement to the changes or partial discontinuation.
12. TERMINATION. SmartBooks may, in its sole discretion and without notice, restrict, deny, or suspend the Services or terminate this Agreement effective immediately, in whole or in part, for suspicion of fraud, security, illegal activity or unauthorized access issues to protect the integrity of our Website, Software, and/or any other aspect of the Services or our systems and comply with applicable SmartBooks policy, or if you fail to comply with this Agreement or no longer agree to receive electronic communications. Upon termination, you must immediately stop using the Services, and any unpaid amounts already due to SmartBooks must be paid within five (5) business days of such termination, and SmartBooks may cause such payment to be made pursuant to Section 3 above. Any termination of this Agreement shall not affect SmartBooks' rights to any payments due to it. SmartBooks may terminate a free account at any time. Sections 2.2 and 3 through 17 (except 8.1 and 8.2) of this Agreement will survive and remain in effect, even if this Agreement is terminated.
13. EXPORT RESTRICTIONS. You acknowledge that the Services, including the mobile application, delivered by SmartBooks are or may be subject to restrictions under applicable US export control laws, including US trade embargoes and sanctions and security requirements, and applicable country or local laws to the extent compatible with US laws. You agree that you will comply with all applicable laws and regulations and will not export, re-export, import or otherwise make available products and/or technical data in violation of any of these laws, directly or indirectly.
14. GOVERNING LAW. Massachusetts state law governs this Agreement without regard to its conflicts of laws provisions.
15. JURISDICTION AND VENUE.
15.1 Venue for the purpose of any dispute or litigation arising out of or related to this Agreement shall lie exclusively in Boston, Massachusetts. The federal and state courts located in Boston, Massachusetts shall have sole and exclusive jurisdiction over any disputes, claims or litigation arising out of or related to this Agreement.
15.2 You must file any claim against or dispute with SmartBooks within one year from when you learned or reasonably should have learned of any alleged breach of contract by SmartBooks or of other information on which you base your or claim or dispute. Otherwise, you are permanently barred and estopped from filing the claim or dispute.
15.3 This Section 15 shall survive expiration, termination or rescission of this Agreement.
16.1 This Agreement, including the Additional Terms below, is the entire agreement between you and SmartBooks and replaces all prior and contemporaneous understandings, communications and agreements, oral or written, between us regarding its subject matter.
16.2 If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be deemed modified to the minimum extent necessary to comply with applicable law or regulation and will not affect the remainder of the Agreement. The remaining terms will be valid and enforceable. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
16.3 You cannot assign or transfer ownership of any rights or obligations under this Agreement to anyone without the written approval of SmartBooks. However, SmartBooks may assign or transfer its rights or obligations under this Agreement without your consent to (a) an Affiliate, (b) a company through a sale of assets by SmartBooks or (c) a successor by merger. Any assignment in violation of this Section shall be void. If you want to request a transfer of this Agreement, contact SmartBooks via an email to: email@example.com.
17. ADDITIONAL TERMS (FOR FIRMS USING SERVICES FOR END CUSTOMERS AND/OR RESELLING SERVICES TO END CUSTOMERS)
17.2 SmartBooks’ Lack of Obligation to Firm’s End Customers. Firm acknowledges and agrees that SmartBooks shall not have any direct contractual relationship with or obligations to any End Customer and that Firm is and shall remain solely liable and responsible for any and all obligations and legal duties to the End Customer. Firm is not an authorized agent or representative of SmartBooks and has and shall have no authority or power to bind SmartBooks to any duty, obligation, warranty, representation, or agreement with or to any End Customer. If Firm provides any End Customer with access to the Software or any aspect of the Services, the End Customer shall be merely an authorized user of Firm, not a direct customer of SmartBooks. All customer support for End Customer’s use of the Services, including without limitation the Software, shall be provided by Firm. Firm shall require any End Customer to which Firm provides access to or use of the Software or other aspect of the Services to agree in writing that: (a) End Customer does not have any contractual relationship with SmartBooks;
(b) End Customer’s only contractual relationship regarding the Software or any aspect of the Services is with Firm; and (c) SmartBooks does not have any obligations to End Customer.
17.3 Firm’s Indemnification. Firm hereby agrees to indemnify, hold harmless and defend SmartBooks from and against any and all demands, claims and causes of action brought against SmartBooks, and any and all losses, damages, liabilities, costs, expenses, attorney’s fees incurred or suffered by SmartBooks, for, as a result of or in connection with: (a) any action or omission by Firm that constitutes a breach by Firm of this Agreement or of any agreement between Firm and an End User; or (b) a breach of any legal duty or legally imposed obligation of Firm to or with respect to any End Customer; or (c) any liability or judgment imposed by law or any court on SmartBooks in favor of any End User, notwithstanding this Agreement’s terms, to the extent that any such liability or judgment for any reason exceeds the limitations on SmartBooks’ liability to Firm under Section 10 of this Agreement.
17.4 Firm’s Conduct. Firm agrees to: (a) have at least one person trained on the use of the Services working for Firm at all times; (b) verify the successful operation of the Services during implementation with each End Customer; (c) report promptly to SmartBooks all suspected and actual problems with the Software or other aspect of the Services of which Firm receives notice, knowledge or information; (d) conduct business in a manner that does not reflect unfavorably on the Software or other aspect of the Services or goodwill or reputation of SmartBooks; (e) avoid deceptive, misleading or unethical practices that are or might be detrimental to SmartBooks or the Services or the reputation of SmartBooks or the Services; (f) refrain from making any false or misleading representations with regard to SmartBooks or any aspect of the Services; (g) refrain from making any representations, warranties, or guarantees to End Customers or other third parties with respect to the specifications, features or capabilities of the Software or any other aspect of the Services that are inconsistent with this Agreement or actual specifications, features, or capabilities of the Software or any other aspect of the Services; and (h) refrain from marketing the Services directly or indirectly via mass-marketing channels such as mail order or bulk e-mail.
WHEREFORE, this Agreement is effective as of the date when you confirm your agreement to be bound by it electronically, by email, by creating an account on the Website or by accessing or using the Software or any other aspect of the Services.
Effective August 2, 2019