Standard Terms of Service

Updated: May 1, 2024

1. Introduction

These Standard Terms of Service ("Terms"), including our Privacy Policy, govern Client’s access to and use of our website: https://www.smarty.com (herein referred to as the "Site"), it's Content, and API Software service(s) (collectively the "Service(s)") provided by Smarty, LLC., (herein the "Provider", "we", "our" or "us"). By accessing and using the Services, the visitor(s), user(s), potential customer(s) or actual client(s) (herein "Client", "you", "your", or "user") agree to these Terms. If you are using the Services on behalf of an organization or entity ("Organization"), you are agreeing to these Terms on behalf of that Organization and you represent and warrant that you have authority to bind the Organization to these Terms. In such cases, "you" and "your" refers to you and that Organization. In the event there exists any contradiction or conflict between these Terms and any separate written and executed agreement between the Provider and Client, the terms and conditions of the separate written and executed agreement shall prevail and govern.

2. Definitions

2.1. “Affiliate” means a legal entity, brand, division, agency, joint venture, alliance or separate department controlling, controlled by, or under common Control with the Client which shall be considered equally, jointly and severally liable for all legal obligations of this Agreement. “Control” means possessing a 50% or greater interest in an entity or the right to direct the management of the entity. For purposes of subscription to Services, each applicable Affiliate desiring to use the Services is an individual Client who must establish an account before using or accessing Provider’s Services.

2.2. "Aggregate data" refers to numerical or non-numerical information that is (1) collected from multiple sources and/or on multiple measures, variables, or individuals and (2) compiled into data summaries or summary reports, typically for the purposes of reporting or statistical analysis—i.e., examining trends, making comparisons, or revealing information and insights that would not be observable when data elements are viewed in isolation. Provider may use Aggregate Data such as submitted address information so that it no longer reflects or references an identifiable natural person for the purpose of creating statistical summaries, for benchmarking, and for use in research and development to create, refine, and improve Provider products and services.

2.3. "Client" is any person, entity, visitor, user, subscriber, customer or potential client accessing and using our Services. (It includes any user, subscribers or affiliate with a donated or free evaluation accounts).

2.4. "Client data" means the information or data submitted by Client, including an address or any other Personal Data contained therein, in any form or media, that is (i) submitted or entered into the Provider's cloud based system, API or Site by Client or on behalf of Client or its end users; (ii) accessed or used by Provider in providing any Services to Client; or (iii) data and content collected, compiled, inferred, stored, cached, or derived directly or indirectly from any of the data and content described in subclauses (i) and (ii) herein.

2.5. "Content" or "output data" means Provider’s products, software, deliverables, postal data, authoritative address, geocodes or geo-location information, metadata, and databases prepared and provided by Provider in the course of performing or delivering the Services to Client. For avoidance of doubt, Content includes Pre-existing Works and Intellectual Property Rights owned or licensed by Provider.

2.6. "Data protection laws” means collectively any applicable data protection, privacy or similar laws applicable to the processing of Personal Data and/or applicable to the Client Data processed as part of the Services, including, without limitation, the Health Insurance Portability and Accountability Act, as amended, and its implementing regulations (collectively, “HIPAA”); the Gramm-Leach-Bliley Act of 1999, as amended; those of the European Union, the European Economic Area (“EEA”), their Member states; Switzerland and the United Kingdom (“UK”), including the GDPR, the UK Data Protection Act 2018 (“UK GDPR”), and the Swiss Federal Data Protection Act (together, “EU Data Protection Law”); those of the United States, including the California Consumer Privacy Act of 2018(“CCPA”), and the implementing regulations of California Privacy Rights Act of 2020, (“CPRA”), the Virginia Consumer Data Protection Act of 2023 (“VCDPA”), the Colorado Privacy Act (effective July 1, 2023) (“CPA”); the Connecticut Personal Data Privacy and Online Monitoring Act (Public Act No. 22-15) (effective July 1, 2023) (“CPOMA”), and the Utah Consumer Privacy Act (Utah Code Ann. §§ 13-61-101 to 13-61-404) (effective December 31, 2023) (“UCPA”); and any relevant regulations, acts or directives made under such legislation or any amendment, re-enactment or extension of such legislation from time to time, including guidance notes and codes of practice issued by any relevant data protection authorities in connection with this Agreement.

2.7. "Derivative work(s)" means works that are based upon one or more pre-existing works, such as: (a) copyrighted or copyrightable material, Content or Intellectual Property: any translation, portrayal, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment, revision or any other form in which such material, Content or Intellectual Property may be recast, transformed, or adapted; (b) any new material derived from such existing trade secret material, including new material that may be protected by any copyright, patent, and trade secret laws; (c) enhancing or embedding Provider’s Content, Pre-Existing Works or deliverables into Client’s product or solution distributed to or for the benefit of Client’s customers are considered Derivative Works. For avoidance of doubt and as an example, creating shipping labels derived from Smarty’s Content for Client’s Internal Business Purposes is a permissible use under Client’s current subscription, however, creating shipping labels to provide services on behalf of Client’s customers, or for the benefit of third-party end users is considered a Derivative Work and would require Client to purchase a Derivative Work license or enter into a reseller partnership agreement with Provider.

2.8. "Documentation" means written explanations of the intended functionality of the Services and the Site and other written material generally intended to guide the user of the Services in the installation, modification, execution, comprehension, or other use of the Site or other necessary software, including, but without limitation, user guides, training materials, worksheets, workbooks, implementation and reference materials, and other documentation, whether in printed or electronic form.

2.9. "Enhanced data privacy" also referred to as "Incognito mode" is an optional Upgrade feature that Enterprise Clients may elect to purchase which prevents Client Data and or Personally Identifiable Information (PII) from ever being logged at the point of submission to Provider's APIs. Client Data submissions are accessed only momentarily in Random Access Memory (RAM), just long enough to process and deliver results back to Client. Upon completion of such process, any residual Client Data in the System’s RAM is dumped or "garbage collected" and written over by subsequent transactions. Such processing methods render requests for data deletion, destruction, correction, blocking, or exportation back to Client not feasible due to the nature of the transitory process.

2.10. "Intellectual property rights" means all right, title, and interest in and to, as applicable, any copyright, software, design, logo, trademark, service mark, patent, invention, trade secret, domain name, Confidential Information, know-how, technology, business name, trade name, trade dress, technical solutions, associated right to sue (past, present, and future), any other intellectual property rights whether existing at common law, applied for, registered or unregistered and all extensions, renewals, continuations, continuations-in-part, divisionals, reissues, re-examinations, and revivals therefor and existing anywhere in the world.

2.11. "Internal business purposes” means the usage of the Services solely by Client for its own internal processes, operations and administration which may include for its own customers or end users but excludes: (i) direct monetary or commercial gain from the Content, or derivative, bundled or resulting products; and (ii) sale, external distribution or license of the Content, or a Derivative Work, bundled or resulting products whether or not for a fee; for the benefit of Client’s customers, or third-party entities outside of Client’s business organization. Internal Business Purposes also excludes any right to provide service bureau or other data processing services, or otherwise share or distribute the Services to any third party outside Client’s organization unless for those Affiliates which are expressly contemplated in a Service Order and by this Agreement.

2.12. "Licensor(s)" means vendor entities and postal organizations that supply Provider with data, updated resources and licenses to access authoritative and proprietary databases utilized by Provider to deliver Content to Clients.

2.13. "Lookup(s)" means any data inputs or Client Data submissions, including but not limited to addresses, geocodes, postal codes, etc. to be processed by Provider’s System for Client or its Permitted Users. Every individual data submission is counted as a single lookup. Client is responsible and agrees to pay for any Lookups performed on its account, even if unintended or accidental. (For avoidance of doubt, if Client creates an automated API call to provider's International Address Verification API, and happens to have an unintended loop in its code causing "runaway" calls to be made to the API, Client will still be responsible to pay for each Lookup attempted). Lookup processing speeds shall be limited to the per-second rate corresponding to the subscription plan purchased. Client Data submissions which are processed in excess of the plan’s corresponding per-second Lookup rate may require Client to purchase an Enhanced Enterprise-level license.

2.14. "Party" means either Client or Provider individually or collectively referred to as "Parties".

2.15. "Payment terms" are the conditions under which the Provider will complete the sale to the Client. Details of the Payment Terms shall depend upon the subscription plan purchased and are specified and set forth in the Client’s administrative account dashboard.

2.16. "Permitted user(s)" means Client's employees, customers, suppliers, consultants, agents and (independent) contractors permitted to have access to and use of the Services and system for whom Client has created unique usernames, security keys, and passwords. Affiliates of Clients are not Permitted Users without establishing their own Client accounts or without the expressed consent of the Provider.

2.17. "Personal data" or "personally identifiable information" means any information relating to an identified or identifiable natural person (an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person), or as that term (or similar variants) may otherwise be defined in applicable data protection, privacy, breach notification, or data security laws or regulations, including Protected Health Information ("PHI") under Health Insurance Portability and Accountability Act ("HIPAA") and any Electronic Protected Health Information ("ePHI").

2.18. "Provider’s system" or "system" means Provider's hardware and/or software used to provide Client access to an application hosted by Provider, or software as a service method to deliver access to Provider's System or system, all provided on a subscription basis and accessible to Client via the Internet as described in the Service Order Form, including without limitation all third-party licensed technology, software, or systems and the Provider's Documentation.

2.19. "Purchase order" means a commercial document used by Client to request Provider to supply deliverables in return for payment and providing specifications and quantities. Purchase Order(s) are solely for Client’s convenience in record keeping. No terms, provisions, or conditions of any subsequent Purchase Order shall have any effect on the obligations of the Parties hereunder or otherwise modify this Agreement regardless of when executed.

2.20. "Services" means any and all electronic and programmed computer instructions used to access and process Client Data to provide deliverables, Content or Output Data, including without limitation, professional services, Support Services, and Cloud-based APIs to Client. In connection with the Services, Provider commits to the provisions of the Service Level Agreement.

2.21. "Support services" means any maintenance or support provided by the Provider in respect of its Services, System or Cloud-based API. (Contact: support@smarty.com or (877) 216-8883).

2.22. "Update" means a modification, correction or addition to Provider’s System or Cloud-based API or Documentation, including updates and enhancements that the Provider makes generally available to its clients as part of Support Services without additional charge. The definition of "Update" excludes Upgrades.

2.23. "Upgrade" means an enhancement or additional feature to Provider’s System or Cloud-based API other than an Update which the Provider does not make generally available to its clients as part of any Support Services, but rather is only made commercially available to clients subject to payment of a separate incremental license fee, or upgrade charge.

3. Your use of the services

You are authorized to access and use Provider’s System and Services only in compliance with these Terms along with all applicable local, state, national, and international laws, rules, and regulations. Smarty reserves the right to refine and change these Terms from time to time without prior notice to you. Your continued use, utilization, and/or renewal of subscription to our services, APIs, products, downloads, or other resources offered by Provider constitutes acknowledgement and acceptance to any updated provisions of these Terms. To be clear, the Standard Terms of Services currently posted and made available on our Site at time of renewal shall govern the agreement between you and Smarty. You agree to review the terms from time to time so that you are apprised of any changes. At the time of any material modifications to the Standard Terms of Service, Smarty will change the “Last Updated” date of the document.

Our Services provide an ability for you to submit for processing to compare your address, input data, or any information referred to as "Client Data" with our Provider's authoritative database and to receive from Provider updated Output Data results or Content via our Cloud based APIs for Internal Business Purposes only. Client Data you submit must be adequate and relevant but should not be exceed the minimum amount necessary for Provider to render its Services. For avoidance of doubt, Client should not send Personal Identifiable Information which is sensitive, not already publicly available, or exceeds the scope of consent from the Data Subject. Furthermore, by utilizing the Site or Services, you hereby certify that you are not a competitor of the Provider and that you will not share or otherwise disclose the Site, Software, or Content for competitive purposes.

4. Use of International Address Verification API product

Each and every address Lookup request that you submit to our International Address Verification API is counted as one used or purchased Lookup. We require that you keep a valid credit card listed on your account. You are responsible for any Lookups performed on your account, even if unintended or accidental. For example, if you create an automated API call and you happen to have an unintended loop in your code which causes "runaway" calls to be made to our International Address Verification API, you will still be responsible for each Lookup attempted. This could result in significant charges to your credit card. Please ensure that your code is correct prior to automating any calls to our API. Similar to our US Street Address API service, you will be able to choose a subscription plan that will accommodate your non-USPS address lookup needs.

5. Prohibited uses of our software and content

The following are prohibited uses of our Software and Content and you agree not to directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, (this includes a prohibition on data mining, scraping, and other methods of extracting information from our Service based on input of contrived/generated addresses); (b) reproduce, modify, translate, or create Derivative Works of the Services; (c) rent, lease, distribute, sell, resell, the Services; (d) assign or otherwise transfer any rights to the Services; (e) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third-party (not including Permitted Users); (f) remove any proprietary notices from the Services; (g) publish, republish or disclose to third parties any copyrighted information derived from the Services without the Provider's prior written consent; (h) create any link to the Site, frame or mirror the Content contained on, or accessible from, the Site; (i) use any Content, data or information including any Personal Data included within the Content, in violation of any rights of any third parties, including such rights arising under any applicable privacy laws; (j) impersonate any other person, or legal entity (including impersonating an employee of the Provider whether actual or fictitious), or using false or misleading documents to obtain services or support inaccurate records or accounting practices; (k) circumvent or disable any security or other technological features or measures of the Services, or attempt to probe, scan or test the vulnerability of a network and or system or to breach security or authentication measures; (l) upload or provide for processing any information or materials that are illegal, defamatory, offensive, abusive, obscene, or that violate privacy or Intellectual Property Rights; (m) submit unnecessary personal information such as names, age, gender, race, genetic, health, social security or identification information etc.; (n) use the Services to harm, threaten or harass another person or organization; or (o) send, store or distribute any viruses, worms, Trojan horses, or other malware component harmful to the Site or System.

In addition, this Site, its Content, and Provider’s System and Products are not available for purchase or licensing to direct competitors of the Provider. Resellers and OEM type Client must enter into a custom agreement with Provider. Uses of Provider’s System, Services and/or Content are not intended for personal or public emergency applications such as address location for safety requests typical of 911 emergency calls or critical services.

6. Privacy

We take your data privacy seriously. You can find information about how we collect, process, and use the data which you provide to us in our Privacy Policy. By using our Services, you consent to the collection and processing of such information. Common for all our data processing is that it is carried out with appropriate safeguards taken into account and in accordance with the fundamental principles in data protection legislation. Contact us if you need Enhanced Data Privacy or need us to enter into a Data Privacy Agreement (DPA) with you.

7. Data privacy and security

Under no circumstance shall Provider be liable for any Client Data which is delayed, lost, altered, or intercepted during transmission across networks not owned or operated by Provider, including, but not limited to, the internet and Client's local network. Client shall protect its permitted users' login names and passwords and other security credentials from access or use by unauthorized users, and is solely responsible for its failure to do so.

8. Data ownership

You retain all Intellectual Property and other ownership rights to your input data (herein "Client Data"). You agree to grant us a worldwide, non-exclusive, irrevocable, transferable, perpetual, royalty-free license (with the right to sublicense) to Aggregate Data, log, process, cleanse, modify, de-identify, publish, transmit, edit, translate, make derivatives, display, and distribute such data for fulfilling your intended purposes, providing and improving the quality of the Services to you. Any Content, or Output data that our Service provides back to you is a non-exclusively licensed product for you to use for a valid legal reason so long as the Output Data is not sold, shared nor redistributed, in whole or in part, whether for profit or not, in a manner which competes with our services. We reserve the right at all times to log, access, read, preserve and/or disclose any information that we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process, or governmental request; (ii) enforce the Terms, including investigation of potential violations; (iii) detect, prevent, or otherwise mitigate fraud, security, or other technical issues; (iv) respond to user support requests; or (v) protect the rights, property, or safety of Smarty, its clients, users, or the public.

9. Your account

All users and Clients (including those using our Evaluation or Free Trial accounts), must provide us accurate information and identification to subscribe and create an account. Your account gives you access to the Services, features, and functionalities that we establish and maintain from time to time at our sole discretion. You may not use another user's account without expressed permission and without prior consent from the Provider.

10. Processing speeds

Lookup processing speeds shall be limited to the per-second rate corresponding to the subscription plan as indicated on our Pricing Page. Any plans not listed on the Pricing Page, such as Legacy Standard Plans, shall be subject to the processing speed rate limits as indicated in a Renewal Approval letter or as indicated in a Client’s account dashboard. Client Data submissions which are processed in excess of the subscribed plan’s corresponding per-second Lookup rate may require Client to purchase an Enhanced Enterprise-level license.

11. Private security credentials

Any and all private credentials and/or secret authentication tokens including passwords that you use to access the Site or our Software are personal to you. You should not share or disclose your private authentication information with anyone who you do not trust or is not a Permitted User. Disclosure of your security credentials to any third-party, including those within your organization, authorizes that third-party to act as an agent on your behalf. You are responsible for safeguarding your credentials, and you agree not to allow any third-party to access our Site, Software, and/or Content using your credentials, unless specifically granted herein. The Provider recommends creating credentials that cannot be easily guessed. You agree to take sole responsibility for any activities or actions under your credentials, whether or not you have authorized such activities or actions. You will immediately notify the Provider and change your credentials if any unauthorized use of your credentials is suspected.

12. Age restrictions

The Provider will only knowingly provide its services to parties that can lawfully enter into and form contracts under applicable law. The legal minimum age of a user may vary depending on laws in your jurisdiction. The Site, Software, and Content are not intended for children under 13 years old. If you are between 13 and 18 years old, use of our Site, Software, and Content is permissible only under the approval and supervision of a parent, legal guardian or an entity able to be bound by our terms of service.

13. Copyrights and feedback

All rights, titles, and interests in and to the Service, Site, Content or Documentation (including but not limited to data, text, graphics, logos, images, video clips, software and other Intellectual Property Rights) will remain the exclusive property of Smarty and its Licensors unless otherwise specified. The Service and Content is protected by copyright, trademark, and other laws of the United States and foreign countries. Any Content that is not the express property of the Provider is used by permission of the copyright holder or Licensor. Nothing in the Terms gives you the right to use the Smarty or SmartyStreets name or any of the Provider trademarks, logos, domain names, and other distinctive brand features. Any reproduction, modification, distribution, transmission, republication, display, or performance of the Content on this Site, unless otherwise granted, is strictly prohibited. Any feedback, comments, or suggestions ("Feedback") you may provide us regarding Smarty, or its Services in the course of this Agreement is entirely voluntary and you agree to let the Provider use such Feedback in a legal manner without obligation to you.

14. USPS® disclaimer and copyright

The Provider is a non-exclusive licensee of the United States Postal Service. The prices of our products and services are neither established, controlled, nor approved by the United States Postal Service. Advertising material is neither endorsed nor approved by the United States Postal Service. Portions of our software are copyrighted by the United States Postal Service. Clients accessing our Site acknowledge that USPS has rights to the licensed materials and licensed marks.

15. Reservation of rights

The Provider reserves all rights not expressly granted to Client herein and Client will not limit Provider in any way from developing, using, licensing, distributing, modifying, or otherwise freely exploiting the Services, System, Cloud-based API, or Documentation or any Updates, Upgrades, modifications, enhancements, improvements or derivative works thereof, or permitting third-parties from so doing. The Provider reserves the right to investigate and prosecute violations of any of the above prohibited uses which may involve cooperation with law enforcement authorities. You acknowledge that the Provider has no obligation to monitor your access to or use of the Site, Software, or Content, but has the right to do so to ensure your compliance with these Terms, to comply with applicable laws, or to comply with a court order or requirement of an administrative agency or other governmental body.

16. External links

The Provider may provide links on our Site to other websites that may or may not be affiliated with, under the control of, or otherwise maintained by our Provider. The Provider does not control third parties, nor their services, and you assume all liabilities in connection to such services. The Provider does not endorse nor make any representations or warranties about third-party sites or any information, software, or other products or services found there.

17. Hyperlinks to the site

You are granted a limited, non-exclusive right to create a "hypertext" link to our Site provided that such link does not portray the Provider or any of its other products or services in a false, misleading, derogatory, or otherwise defamatory manner. This limited right may be revoked at any time, for any reason, whatsoever. You may not use, frame, or utilize framing techniques to enclose any Provider trademark, logo, or trade name or other proprietary information found on our Site, the Content of any text or the layout/design of any page, or any form contained on a website page without the express written consent of the Provider.

18. Publicity

Unless you opt out by contacting a marketing representative, you agree that Provider may use and publish your Organization's name in its customer lists, lists of referrals for other customers, and in other promotional information, including, but not limited to, press releases, brochures, reports, letters, white papers, and electronic media such as e-mail or Web pages.

19. Term of commencement

This Agreement shall commence on the date these terms are accepted by the Client through a click-through website subscription or an executed signature process and shall continue in intervals of one (1) month up to twelve (12) months periods according to the Service plan selected by the Client. Subscriptions shall automatically renew so as to allow uninterrupted Services to Client for successive time periods or upon exhaustion of allotted Lookups until such time termination is requested or required by either Party.

20. Fees and payment terms

Payment is due within 30 days of the invoice date. A late fee is charged 10 days after the invoice due date at 1.5%. If your organization requires payment terms longer than Net 30 please contact a sales representative. Date of remittance payment is based on the mailing (postmark) date. Failure to pay the invoice in full, including any late fees, will exclude the user from selecting invoicing as a future payment method. Provider reserves the right to change Client’s payment method on file. Accounts whose invoices are over 45 days old may be subject to Service suspension and collections procedures.

21. Recurring billing

Our Services are automatically billed to a credit card that you provide us in advance (or in accordance to other prearranged methods of payment that we agree upon). Access to our Services are contingent upon receipt of your initial payment and payment information. Clients may establish other subsequent automatic payments at a given interval—either monthly, annually, or according to usage that the Client establishes. Payment is due before subscription ends, so as to not disrupt continuity of service. For example, if before the end of the predetermined billing cycle you consume all of your purchased API lookups, your method of payment would be automatically charged to allow continuation of the Service. If recurring charges are due early, your subsequent billing dates will be reset based on that date. Recurring billing can be cancelled with twenty-four (24) hours notice by contacting our Customer Support. Any refund requests for recurring or automated charges must be made in strict compliance with the Provider's established Refund Policy.

22. Chargebacks

You agree to contact the Provider before disputing any charge against the method of payment specified, which is commonly referred to as a "chargeback". Chargebacks on credit cards or any other form of stop payment provided to the Provider will be researched and disputed if, in the Provider's reasonable opinion, the chargeback is not justified. You acknowledge and agree that if services have been performed by the Provider, chargebacks are unlawful. Any chargeback will automatically invoke the following per-occurrence fees without exception. A $50 administration fee, a $25 chargeback fee, and a $50 recovery fee. These fees, along with any disputed charges, will result in a negative balance on your account which must be paid fully before services on the account can be reactivated. In the event of a chargeback, the Provider may need to provide relevant information to a third-party for the purposes of recovering the debt or for the pursuit of civil or criminal proceedings.

23. Evaluation period and free trial

If you subscribe for a free trial ("Trial Account") of one or more Services, use of such Services are governed by these Terms including any applicable privacy laws for a duration of the earlier of: (a) the "Evaluation Period"; (b) the start of any paid subscription for such Services; or (c) termination by Provider at its sole discretion. If you do not sign up for a paid subscription at the expiration of the Evaluation Period, the Services may automatically terminate unless the Provider at its sole discretion, agrees to extend the Evaluation Period. If the Provider donates any free Trial Accounts, additional terms and conditions may be imposed upon registration and any such additional terms and conditions are incorporated into this Agreement by reference and shall be legally binding. If you subscribe to a free plan of 250 US Street Address API lookups per month, you are allowed to use the Services free of charge for a maximum of one year after which renewal extension, suspension or termination may occur at Provider's sole discretion.

TRIAL ACCOUNTS MAY BE SUSPENDED, TERMINATED, OR DISCONTINUED AT ANY TIME AND FOR ANY REASON (OR NO REASON). THE PROVIDER DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT (INCLUDING LIABILITY OTHERWISE PROVIDED FOR UNDER SECTION ENTITLED "LIMITATION OF LIABILITY" FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A TRIAL ACCOUNT, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO CLIENT DATA. ANY CONFIGURATIONS OR DATA ENTERED INTO A TRIAL ACCOUNT, AND ANY CUSTOMIZATIONS MADE TO A TRIAL ACCOUNT BY OR FOR CLIENT, MAY BE PERMANENTLY LOST OR DELETED IF THE TRIAL ACCOUNT IS SUSPENDED, TERMINATED, OR DISCONTINUED. ANY OBLIGATIONS BY THE PROVIDER UNDER THIS AGREEMENT DO NOT APPLY TO TRIAL ACCOUNTS. FURTHERMORE, THE PROVIDER RESERVES ALL RIGHTS TO PROTECT AND ENFORCE THE TERMS OF THIS AGREEMENT.

24. NO WARRANTY. Use at your own risk

THE SITE, CONTENT, AND ACCOUNTS, INCLUDING TRIAL ACCOUNTS, AND SERVICES DELIVERED BY THE PROVIDER ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND EITHER EXPRESSED OR IMPLIED. THE PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WHILE TAKING MEASURES TO ENSURE REASONABLE ACCURACY, SECURITY, AND AVAILABILITY OF THE SOFTWARE, THE PROVIDER MAKES NO WARRANTY THAT THE SITE, SOFTWARE, OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. THE PROVIDER MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY DATA OR INFORMATION OBTAINED THROUGH THE SITE, SOFTWARE, OR CONTENT. YOUR ACCESS TO AND USE OF THE SITE, SOFTWARE, AND CONTENT IS AT YOUR OWN RISK. THE PROVIDER WILL HAVE NO RESPONSIBILITY FOR ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SITE, SOFTWARE, OR CONTENT.

25. Suspension and termination

If you violate any of our Terms of Services, your authorization to use the Site, Software, and Content, may automatically suspend or terminate. In the event of a termination due to your breach of our Terms, you agree that any fees paid for our services are non-refundable. This Agreement may be terminated by either Party: (i) if the other Party fails to observe or perform any material term or condition of this Agreement and does not cure such breach or failure within thirty (30) days after written, emailed, or direct notice by the other Party; or (ii) if the other Party makes a general assignment for the benefit of creditors or files a voluntary petition in bankruptcy or if a petition in bankruptcy is filed against such other Party and is not dismissed within thirty (30) days after the filing, or if a receiver or trustee is appointed for all or any part of the property or assets of such other Party. You may terminate this Agreement for any reason, or no reason at all, by providing Provider with thirty (30) days prior written notice, however, any requests for refunds are subject to our Refund Policy. The Terms related to confidentiality, limitation of liability, indemnity, protection of Personal Information, dispute resolution, data ownership, any warranties offered herein, including this clause shall survive the termination or expiration of this Agreement.

26. Abuse alert

REGARDLESS OF ANY RIGHT TO CURE BREACH PROVISION STATED WITHIN THIS AGREEMENT, THE PROVIDER AND RESPECTIVE SUPPLIERS AND LICENSORS RESERVE THE RIGHT TO IMMEDIATELY SUSPEND AND/OR TERMINATE SERVICES TO CLIENTS THAT TRIGGER AN EMBEDDED ABUSE OR MISUSE DETECTION ALERT. SUCH ALERT INDICATES REVERSE ENGINEERING, DATA SOURCE SCRAPING, IMPROPER ACCESSING OR SHARING, OR VIOLATING USAGE OF PROPRIETARY DATA WHICH, IN GENERAL, CANNOT BE TRIGGERED INADVERTENTLY AND WHICH CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT. THE ALERT WILL SUBJECT CLIENT TO AN AUTOMATIC SUSPENSION OF ACCOUNT WHILE AN INVESTIGATION IS ENSUED. PROVIDER WILL PROMPTLY NOTIFY CLIENT TO DETERMINE WHETHER A REINSTATEMENT OR TERMINATION OF SERVICES IS WARRANTED. IN THE EVENT OF AN AUTOMATIC TERMINATION DUE TO AN ABUSE ALERT, CLIENT AGREES TO MAKE PAYMENT OF ANY OUTSTANDING FEES DUE AND WAIVES ANY BREACH CLAIMS UNDER THIS AGREEMENT INCLUDING CLAIMS TO A REFUND FOR UNUSED LOOKUPS OR ANY OTHER VALUE IN CLIENT'S ACCOUNT.

27. Indemnity

Client agrees to defend, indemnify, and hold harmless Provider, our affiliates, officers, directors, employees, suppliers, consultants, and agents from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys' fees) arising from or related to, as applicable: (a) Customer’s access to and use of the Services; (b) violation of these Terms by Client or its Authorized Users, as applicable; (c) infringement of any intellectual property or other right of any person or entity by Client; (d) the nature and content of all Client Data, and (e) the Client’s Software.

28. Limitation of liability

The Provider shall not be liable to Client for any direct, indirect, incidental, special, consequential, or punitive damages resulting from your access to or use of, or inability to access or use, the Site, Software, or Content, whether based on warranty, contract, tort (including negligence), or any other legal theory, whether or not the parties have been informed of the possibility of such damage. Except for cases of fraud, criminal conduct, or liabilities excluded or limited by applicable law, the Provider's maximum aggregate liability arising from or in connection with this Agreement (including the Services or the subject matter of this Agreement) will be limited to, and shall not exceed the amount paid by Client pursuant to this Agreement in the twelve (12) month period preceding the event giving rise to the claim; and in no case shall the Provider ever be liable to the Client or third-parties for any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data or website, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

29. Disclaimer of liability - Emergency 911 uses

Uses of all Provider Services, Content and/or other products such as Rooftop Geocoding or products otherwise communicated to Client are not intended for personal or public emergency applications such as address location for safety requests typical of 911 emergency calls or critical services (i.e., a heart valve needing to be delivered to this hospital address for an operation) herein "Excluded Applications". PROVIDER WILL NOT BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY FALSE, DELAYED, INACCURATE, INAPPROPRIATE OR INCOMPLETE CONTENT INFORMATION WHICH MAY CAUSE DAMAGES, INJURIES OR DEATH ARISING DIRECTLY OR INDIRECTLY FROM CLIENT’S USE OF OR INABILITY TO USE SUCH EXCLUDED APPLICATIONS.
IN NO EVENT SHALL PROVIDER BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, DEATH, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS CLAUSE AND AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE APPLICABLE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

30. No right of offset

Client may not offset any amounts to which it may be entitled under the terms of this Agreement against amounts otherwise payable to the Provider under this Agreement. The foregoing will not constitute an election of remedies or otherwise limit Client or Provider in any manner in the enforcement of any other remedies that may be available to it herewith.

31. Taxes

Provider may charge and Client shall pay all applicable sales, use or value-added taxes ("Sales Taxes") that Provider is legally obligated to charge for the Services, unless Client provides Provider with a timely and valid tax exemption certificate (or other documentation as required by the exemption, including proof of self-assessment) authorized by the appropriate taxing authority.

32. Controlling law and jurisdiction

These Terms and any action related thereto (including taxation issues) will be governed by the laws of the State of Utah 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 Utah. The exclusive jurisdiction and venue of any action arising under these Terms or related thereto will be the state and federal courts located in Utah County, State of Utah, and each of the parties hereto waives any objection to jurisdiction and venue in such courts. In any action to enforce this clause or this Agreement, the prevailing Party will be entitled to costs and reasonable attorneys' fees.

33. Purchase orders

Purchase Orders, if applicable, are solely for Client’s convenience in record keeping. No terms, provisions, or conditions contained in any subsequent Purchase Order will have any effect on the obligations of the Parties hereunder or otherwise modify this Agreement regardless of when executed. Any associated terms and conditions referenced in a Purchase Order or similar documentation even if accepted and Services performed between the Parties shall be of no legal force or effect, and shall not, in any way, be deemed to amend, modify, supersede, alter or supplement this Agreement.

34. Entire agreement

These Standard Terms of Service govern and supersede and negate any previous communication or representation whether express or implied, written or oral unless a subsequent written amendment is explicitly executed with signatures from both parties. For avoidance of doubt, upon account creation or subscription activation, any further or subsequent communications or modifications between the Parties whether expressed verbally or in written form including, but not limited to, phone conversations, text messages, internet "chat" messages, voicemails, video conference calls, certified mail, singing telegrams, smoke signals, carrier pigeon, expressions made through interpretive dance and/or email correspondence, shall not create any implied contract nor bind Provider to obligations beyond those enumerated by these Terms unless such communications or modifications are mutually entered upon in writing, executed and signed by both parties.

35. Dispute resolution/arbitration

Any disputes and claims relating to use of the Service or the application of these Terms shall be resolved as follows:

35.1. Exclusive Dispute Resolution Mechanism. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement or the breach, termination or invalidity thereof (each, a "Dispute"), under the provisions of this clause. The procedures set forth in this shall be the exclusive mechanism for resolving any Dispute that may arise from time to time and are the expressed conditions precedent to arbitration or litigation of the Dispute.

35.2. Negotiations. A Party shall send written notice to the other Party of any Dispute. The Parties shall first attempt in good faith to resolve any Dispute set forth in the notice by negotiation and consultation between themselves, including not fewer than three (3) negotiation sessions attended by a Director level or higher for both Client and Provider. For purposes of clarification, the Party sending a notice of an Escalation to Director level or higher shall send such notices in compliance with the Notice section herein.

35.3. Escalation. If the Parties cannot resolve any Dispute under this clause within thirty (30) days after a written notice, either Party may seek resolution by initiating arbitration in Utah County, Utah administered by Judicial Arbitration and Mediation Service (JAMS). BINDING ARBITRATION MEANS THAT YOU WAIVE ANY RIGHTS TO A JURY TRIAL. Judgment rendered shall be binding and any award entered by JAMS arbitrator may be pursued and enforced by any court having legal jurisdiction. The non-prevailing Party shall bear all costs, expenses, and reasonable attorneys' fees for arbitration.

35.4. Legally Binding. In the arbitration proceeding, the arbitrator has no authority to make errors of law, and any award may be challenged if the arbitrator does so. Otherwise, the arbitrator's decision is final and binding on all Parties and may be enforced in any federal or state court that has jurisdiction. Neither you nor the Provider shall be entitled to join or consolidate claims in arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity. Accordingly, you agree that the JAMS Class Action Procedures do not apply to our arbitration.

36. Survival and severability provisions

All provisions, covenants, and obligations governing these Terms, by their nature, are intended to survive termination, or expiration of a subscription and will remain in force thereafter. If any clause or part of a Terms provisions is held to be illegal, invalid, or unenforceable by a court or tribunal of competent jurisdiction or limits any liability which cannot be limited or excluded by law, that provision will be severed from these Terms but the remaining provisions will remain in full force and effect; and a similar legal, valid and enforceable provision will be substituted in lieu of the severed provision.

Product specific terms:

The following products and APIs contain additional license terms and conditions:

International Address Verification License

1. Data Controllers. (Clients) who process Personal Data of data subjects (citizens, or natural persons residing in countries outside of the United States) agree to abide by the data privacy and protection laws governing those respective countries.

2. Copyright Notices. Portions of our International Address Verification API software are protected by the following:

Australia: "Copyright. Based on data provided under license from PSMA Australia Limited (www.psma.com.au)."

Brazil: "Conteudo fornecido por MapLink."

Canada: "This data includes information taken with permission from Canadian authorities, including © Her Majesty, © Queen's Printer for Ontario, © Canada Post, GeoBase Ò. Copyright Notice: This data includes information copied under license from Canada Post Corporation."

France: "Géoroute® IGN France & BD Carto® IGN France."

Germany: "Die Grundlagendaten wurden mit Genehmigung der zuständigen Behörden entnommen"

Great Britain: "Based upon Crown Copyright material."

Greece: "Copyright Geomatics Ltd."

Italy: "La Banca Dati Italiana è stata prodotta usando quale riferimento anche cartografia numerica ed al tratto prodotta e fornita dalla Regione Toscana."

Portugal: "Source: IgeoE – Portugal."

Spain: "Información geográfica propiedad del CNIG."

3. Restrictions Specific to Use of Australian Data: Provisions of this Section applies specifically to subscriptions to the Provider's International Address Verification and International Address Autocomplete Lookup plan that may access Australian address data. Client may not use the Services, Site or Documentation: (i) for anything other than Client's own Internal Business Purposes, including legal and/or accounting purposes; (ii) for reselling to benefit any third parties; (iii) to systematically incorporate the Services or Documentation to create a list or set of records that is substantially similar, used to compete with Provider, government entity or organization that originated the source of Provider address master list or database; (iv) to create a Derivative Work, product or service which consists of, incorporates or is created using any part of Provider source data or software in any form, including any device, solution, software or database and which may be in written form or produced electronically or other Derivative Works, to commercialize as Client's own; (v) for the purposes of providing a service bureau, time-sharing or other similar purposes; (vi) with respective to Australia Post Data, use any data derived from Services or Documentation to validate addresses and/or append Delivery Point Identifiers (DPIDs) to an existing address database which is not owned by Client or where the purpose of it is not for the Internal Business Purpose or in accordance with clause(i) of this Section; (vii) to validate addresses and/or append DPIDs to an existing address database, whether owned by Client or not, for the purpose of on selling or reselling for commercial gain (including commercial gain from any derive insights), but this paragraph does not prohibit Client from using Provider data and services for an internal list creation and address verification in accordance with clause (i) of this Section; (viii) provide validated addresses to third parties unless those third parties are contracted as Client's vendors to carry out some work on Client's behalf which does not infringe with provisions, commitments, and obligations found in this Agreement, and/or any other agreements entered into between Client and Provider.

4. Emergency 911 uses and disclaimer of liability. Uses of all Provider Services, Content and/or other products are not intended for personal or public emergency applications such as address location for safety requests typical of 911 emergency calls or critical services (ie. a heart valve needing to be delivered to this hospital address for an operation) herein "Excluded Applications". Provider will not be liable to Client or to any third party for any false, delayed, inaccurate, inappropriate or incomplete Content information which may cause damages, injuries or death arising directly or indirectly from Client’s use of or inability to use such Excluded Applications.

US Autocomplete and/or International Autocomplete License

1. Overview: The US Autocomplete and/or International Autocomplete License Addendum (herein "License") is a limited license agreement by and between the Client and the Provider as defined and governed in conjunction with either the Terms of Services of Provider's System subscription or a Master Services Agreement (individually or collectively the "Agreement") between the Parties. In the event there exists any conflict in terms, conditions, or definitions (herein "Conflicting Issues") between this License and the Terms of Services on Provider's System, the terms of this License will supersede or control with respect to such Conflicting Issues.

2. License rights: Provider hereby grants Client a limited, worldwide, non-exclusive, non-transferable, revocable License to access and use Provider’s US and/or International Address Autocomplete Services which allows a user to input a keystroke-by-keystroke partial-address interactive lookup, and immediately receive suggestions of complete addresses, including a 5-digit ZIP Code (herein “Content”) via our API Services. Provider Content and Services are available for Internal Business Purposes only for the duration of the term stated on a Service Order or a current online subscription.

3. Acceptable use policy: The US Autocomplete and International Address Autocomplete product is intended to be used by individual natural persons ("Consumers") and not by automated or computer assisted means or devices. Input of address queries are to be interactively submitted by a Consumer keystroke by keystroke to arrive at a given result and it is anticipated that the results are viewed by a Consumer. As a user submits such a query, each and every series of submissions shall constitute a single Lookup (regardless of the output number of suggested addresses it generates) and each Lookup is subject to pricing as agreed upon in a Service Order. Inputting an address in its entirety or as a wholly completed string, or generated by automation, constitutes a material breach contrary to this License unless otherwise modified in writing by the Parties.

4. Restrictions: This License is not to be interpreted as a sale or granting of ownership to any Intellectual Property Rights or Content, nor is it to be construed as a Private Label or Reseller-Distribution agreement. Except as permitted for internal business use purpose, Client shall not (nor permit Consumer to) disclose, reproduce, copy, reverse-engineer, mine, scrape, modify, assign, distribute (except as authorized), sell, rent, lease, market, publish, transfer, share, or sublicense Provider’s Content, or Services to benefit itself, any third-party or Client Affiliate. Client is prohibited from attempting to unlock or bypass any initialization system, encryption methods or copy protection devices in Provider’s product.
Excluded Applications. Client shall not alter, remove or obscure any patent, trademark or copyright notice in the products Services or Documentation or use the Services within or in conjunction with in-flight navigation or any vehicle navigation system providing turn-by-turn directions absent express written consent from Provider.

5. No emergency applications: Use of the US Autocomplete and International Address Autocomplete products are not intended for emergency applications such as personal or public safety services requests via 911 emergency calls ("Excluded Applications"). Provider shall not be liable to Client or to any third party for any false, delayed, inaccurate, inappropriate or incomplete Content information which may cause damages, injuries or death arising directly or indirectly from Client’s or Consumer’s use of or inability to use such Provider’s Services. Client shall not circumvent the applicable fees associated with Lookups. For example, Client may not prevent Smarty from accurately calculating Client’s Service usage levels or create multiple billing accounts or projects to avoid incurring Fees, abuse any free Service quotas, or offer access to the Services under a "time-sharing" or "service bureau" model.

US Rooftop Geocoding and/or US Reverse Geocoding License Addendum

1. Overview: This US Rooftop Geocoding License and/or US Reverse Geocoding License (herein "License") is a limited license agreement by and between the Client and the Provider as defined and governed in conjunction with either the Terms of Services of Provider's System subscription or a Master Services Agreement (herein the "Agreement") between the Parties. In the event there exists any conflict in terms, conditions, or definitions (herein "Conflicting Issues") between this License and the Agreement or the Terms of Services on Provider's System, the terms of this License will supersede or control with respect to such Conflicting Issues.

2. License rights: Provider hereby grants Client a limited, worldwide, non-exclusive, non-transferable (except as authorized herein), revocable License to access and use Provider's geocoding data product consisting of latitude and longitude coordinates (herein referred to as "Geocoding Content") in addition to other Provider Content and Services available for internal business use purposes only and for the duration of the term stated on a Service Order or a current online subscription. This License shall include access rights and Services to the Provider's Cloud Based API and online System.

3. Restrictions: This License is in no way to be interpreted as a sale to Client or granting ownership to any Intellectual Property Rights or Content, nor is it to be construed as a Private Label or Reseller-Distribution license unless otherwise indicated in a Service Order. Except as permitted as internal business use purposes, Client shall have no right to disclose, reproduce, copy, reverse-engineer, mine, scrape, modify, assign, distribute (except as explicitly authorized), sell, rent, lease, market, publish, transfer, share, or sublicense Geocoding Content, Software, or Services to benefit itself, any third-party or Client Affiliate. Third-party or Affiliated entities must obtain their own subscription for Services. Use of US Rooftop Geocoding and other Provider Services is not intended for emergency applications such as personal or public safety services requested via 911 emergency calls.

4. Termination and deletion obligation: Upon expiration of a subscription or term set forth in a Service Order, Client shall cease use of, delete, destroy, and/or purge from its computer system any Geocoding Content in its possession. Upon request, Client will provide certification of removal, deletion and disposal of Provider's proprietary Content.

5. Perpetual use and transferability: An option to transfer or purchase a perpetual limited-use license to US Rooftop Geocoding Content beyond the expiration of a subscription or Service Order may be available at a negotiable price for Internal Business Purposes only. Such license may include additional restrictions, terms, and conditions. For more details, please contact a Sales Representative.

6. No warranties: PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED ABOUT THE COMPLETENESS, QUALITY, ACCURACY, RELIABILITY, SUITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FITNESS OF USE FOR PERSONAL OR PUBLIC SAFETY AND EMERGENCY SERVICES, OR GENERAL AVAILABILITY WITH RESPECT TO THE CONTENT OR INFORMATION MADE AVAILABLE TO CLIENT DERIVED FROM THIS PRODUCT OR RELATED PROVIDER SERVICES. ANY RELIANCE CLIENT PLACES ON PROVIDER'S OUTPUT MATERIAL IS STRICTLY AT CLIENT'S OWN RISK.

7. Emergency 911 and disclaimer of liability: Uses of US Rooftop Geocoding and other Provider Services are not intended for personal or public emergency application, such as address location for safety requests typical of 911 emergency calls and services. Provider will not be liable to Client or to any third party for any false, delayed, inaccurate, inappropriate or incomplete information which may cause damages or death arising directly or indirectly from use of, or inability to use Geocoding Content, Services, or any Content or information contained therein.