*Summary: This section introduces the Terms of Service as a binding legal agreement between Smackdab Inc. and the Customer for the use of the Smackdab platform. It outlines how the Customer accepts these terms and who is authorized to agree on behalf of an entity. It also includes restrictions on use by competitors and states Smackdab’s right to modify the agreement with notice.*
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THIS IS A BINDING LEGAL AGREEMENT BETWEEN YOU (THE “CUSTOMER”) AND SMACKDAB INC. (“SMACKDAB,” “COMPANY,” “WE,” “US,” OR “OUR”). IT GOVERNS YOUR ACCESS TO AND USE OF OUR SOFTWARE-AS-A-SERVICE (THE “SERVICE”). THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER IN SECTION 14, WHICH AFFECTS YOUR RIGHTS ON HOW TO RESOLVE DISPUTES. YOU HAVE A RIGHT TO OPT OUT OF THE BINDING ARBITRATION PROVISION AS DESCRIBED IN SECTION 14.8.
These Terms of Service (“Agreement” or “TOS”) are entered into by and between Smackdab Inc., a Florida corporation with its principal place of business in Collier County, Florida, and the entity or individual registering for, accessing, or using the Services (“Customer,” “you,” or “your”). This Agreement constitutes a legally binding contract. The purpose of this TOS is to regulate the legal relationship between Smackdab and its Customers regarding the access and use of the Smackdab Service.
By accessing or using the Services, clicking a box or button indicating acceptance (e.g., “I Agree,” “Accept”), creating an account, executing an Order Form (as defined below) that references this Agreement, or otherwise manifesting your assent to this Agreement, you acknowledge that you have read, understood, and agree to be bound by these terms.
If you are entering into this Agreement on behalf of a company, organization, or another legal entity (an “Entity”), you represent that you have the authority to bind such Entity and its Affiliates (as defined below) to this Agreement. In such cases, the terms “Customer,” “you,” or “your” shall refer to such Entity and its Affiliates. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Services.
You may not access the Services if you are our direct competitor, except with our prior written consent. Furthermore, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
Smackdab reserves the right to modify this Agreement at any time as detailed in Section 15.16 (Modifications to Agreement). It is your responsibility to regularly review this Agreement. Disputes arising under this Agreement will be resolved in accordance with the version of the Agreement in place at the time the dispute arose.
**1. DEFINITIONS**
*Summary: This section defines key capitalized terms used throughout the Terms of Service to ensure clarity and common understanding between Smackdab Inc. and the Customer. It covers terms related to the agreement itself, the parties involved, the services offered, data types, intellectual property, and various incorporated policies and legal concepts.*
For the purposes of this Agreement, the following capitalized terms shall have the meanings ascribed to them below. Other capitalized terms used throughout this Agreement shall have the meanings ascribed to them in the context in which they appear.
1.1. “Acceptable Use Policy” or “AUP” means Smackdab’s Acceptable Use Policy, located at https://smackdab.ai/legal/acceptable-use-policy, as may be updated by Smackdab from time to time, which is incorporated herein by reference. “High-Risk Activities” referenced herein are further defined within the AUP.
1.2. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3. “Agreement” means these Terms of Service, including any Order Forms, exhibits, schedules, addenda, and policies explicitly incorporated herein by reference (such as the Privacy Policy, AUP, SLA, DPA, Security Policy, Cookie Policy, DMCA Policy, Billing Policies, API Terms of Use, Beta/Early Access Terms and BAA, if applicable).
1.4. “AI Features” means any features or functionalities within the Service that utilize artificial intelligence, machine learning, or similar technologies for purposes such as predictive analytics, automated communication, lead scoring, or generating insights.
1.5. “API” means Smackdab’s application programming interfaces and associated documentation or software.
1.6. “API Terms of Use” means Smackdab’s API Terms of Use located at https://smackdab.ai/legal/api-terms, incorporated herein by reference if Customer utilizes the API.
1.7. “Applicable Law” means all statutes, regulations, ordinances, rules, codes, edicts, decrees, judgments, injunctions, orders, and other binding requirements of any federal, state, local, or foreign governmental authority, regulatory or administrative agency, or court of competent jurisdiction applicable to the performance of obligations or exercise of rights under this Agreement, including but not limited to Data Protection Laws.
1.8. “Authorized User” or “User” means an individual (e.g., an employee, contractor, or agent of Customer, or potentially Customer’s own clients if permitted by Customer’s subscription and configured within the Service) who is authorized by Customer to use the Services under Customer’s account, for whom Customer has purchased a subscription (or, for no-charge Services, for whom Services have been provisioned), and to whom Customer (or Smackdab at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Authorized Users must be individuals who are 18 years of age or older, or the age of majority in their jurisdiction if higher. The Service is not directed to children under the age of 18, and individuals under 18 are not permitted to use the Service. Smackdab’s practices regarding children’s data are further detailed in its Privacy Policy.
1.9. “Background IP” means any pre-existing intellectual property, tools, methodologies, software, algorithms, know-how, or other materials owned or developed by Smackdab independently of or prior to any Professional Services engagement with Customer, or developed by Smackdab outside the scope of a specific SOW for Customer.
1.10. “Beta Services” means certain features, services, software, or functionality that Smackdab may offer on a trial, beta, pilot, limited release, developer preview, non-production, evaluation, or similar versions of its offerings, which are governed by the Beta/Early Access Terms.
1.11. “Beta/Early Access Terms” means Smackdab’s Beta/Early Access Terms located at https://smackdab.ai/legal/beta-terms, incorporated herein by reference if Customer utilizes Beta Services.
1.12. “Billing Period” means the recurring interval for which Fees are charged, as specified in the applicable Order Form (e.g., monthly, annually).
1.13. “Billing Policies” means Smackdab’s Billing Policies located at https://smackdab.ai/legal/billing-policies, incorporated herein by reference.
1.14. “Business Associate Agreement” or “BAA” means Smackdab’s standard Business Associate Agreement, required under HIPAA for customers handling PHI through the Services. If applicable, the BAA must be executed separately and is incorporated by reference into this Agreement.
1.15. “CCPA” means the California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 et seq., as amended by the California Privacy Rights Act of 2020 (“CPRA”), and any related regulations.
1.16. “Confidential Information” means all non-public information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information explicitly includes Customer Data. Our Confidential Information includes the Services, Software, Platform, Smackdab IP, Background IP, Documentation (except publicly available portions), pricing, business plans, product roadmaps, non-public security information, and the terms and conditions of this Agreement and any Order Form. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.
1.17. “Cookie Policy” means Smackdab’s Cookie Policy located at https://smackdab.ai/legal/cookie-policy, incorporated herein by reference.
1.18. “Customer” means the individual or legal entity identified in the account registration or applicable Order Form as the purchaser or user of the Services.
1.19. “Customer Data” means all electronic data, text, messages, communications, files, documents, images, audio, video, contact information, sales pipeline data, customer interactions, financial data, and other materials, including any Personal Data therein, submitted to, stored in, processed by, or transmitted through the Services by Customer, its Affiliates, or Authorized Users. Customer Data excludes Feedback and Usage Data. Customer Data is the Confidential Information of the Customer and is owned by the Customer.
1.20. “Data Processing Addendum” or “DPA” means Smackdab’s Data Processing Addendum, located at https://smackdab.ai/legal/data-processing-addendum. This DPA applies automatically and is incorporated by reference into this Agreement if and to the extent Smackdab Processes Personal Data on behalf of Customer as a “processor” or “service provider” under Applicable Data Protection Laws (such as GDPR or CCPA). By accepting this TOS or executing an Order Form that references this TOS, Customer agrees to the terms of the DPA where applicable. For certain Customers or jurisdictions, separate execution of the DPA may be required by Smackdab or offered to Customer.
1.21. “Data Protection Laws” means all applicable laws and regulations relating to the privacy, data protection, and security of Personal Data, including, where applicable, the GDPR, UK GDPR, CCPA, CPRA, VCDPA (Virginia), CPA (Colorado), CTDPA (Connecticut), UCPA (Utah), Florida’s SB 262 (Florida Digital Bill of Rights), and other relevant federal, state, and international laws.
1.22. “Deliverables” means any reports, software code, documentation, or other materials created or developed by Smackdab specifically for Customer as part of Professional Services, as identified and agreed in an applicable Order Form or SOW. Deliverables do not include Smackdab’s Background IP or the standard Services platform.
1.23. “DMCA Policy” means Smackdab’s DMCA / Copyright Policy located at https://smackdab.ai/legal/dmca-policy, incorporated herein by reference.
1.24. “Documentation” means the official user guides, specifications, knowledge base articles, help documentation, and other technical materials provided or made available by Smackdab relating to the operation and use of the Services, accessible via https://smackdab.ai/support/docs (or other designated URL as Smackdab may provide).
1.25. “Downtime” means the period during which the core functionalities of the Service are unavailable to Customer, excluding Scheduled Maintenance and Excusable Downtime, as further defined in the SLA.
1.26. “Effective Date” means the earlier of (a) the date Customer first accepts this Agreement (e.g., by clicking “I Agree” or similar button or checkbox), (b) the effective date set forth on the initial Order Form, or (c) the date Customer first accesses or uses the Services.
1.27. “Fees” means the charges specified in the applicable Order Form(s) or otherwise agreed upon for the subscription to the Services, Professional Services, or other offerings, as further detailed in the Billing Policies. “Subscription Fees” are Fees specifically for the subscription to the Services.
1.28. “Feedback” means any suggestions, comments, ideas, improvements, enhancement requests, recommendations, bug reports, usability assessments, or other feedback provided by Customer, its Affiliates, or Authorized Users relating to the Services, Documentation, AI Features, Beta Services, or other Smackdab offerings.
1.29. “Force Majeure Event” means an unforeseen event beyond a party’s reasonable control, as further defined in Section 15.6.
1.30. “Free Services” means the Subscription Service or other products or features made available by Smackdab to Customer on an unpaid trial or free basis, including any “free tier” of the Service.
1.31. “GDPR” means the General Data Protection Regulation (EU) 2016/679.
1.32. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended.
1.33. “Initial Subscription Term” means the initial period of the subscription to the Services as specified in the applicable Order Form.
1.34. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.35. “Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code.
1.36. “Order Form” means an ordering document, quote, online order, or subscription activation form specifying the Services (or Professional Services) to be provided, including applicable Fees, Subscription Term, Billing Period, number of Authorized Users, service levels, usage limits, and other commercial terms, entered into between Customer and Smackdab. Order Forms are incorporated herein by reference and are subject to Section 15.7 (Entire Agreement and Order of Precedence).
1.37. “Personal Data” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws (e.g., GDPR, CCPA).
1.38. “PHI” means Protected Health Information as defined under HIPAA.
1.39. “Platform” means the specific Smackdab proprietary software-as-a-service platform(s) and underlying technology identified in the Order Form, made available by Smackdab to Customer via the internet.
1.40. “Privacy Policy” means Smackdab’s Privacy Policy, located at https://smackdab.ai/legal/privacy-policy, which describes how Smackdab collects, uses, discloses, and protects Personal Data for which it is a controller, including its approach to children’s data and compliance with Florida SB 262. The Privacy Policy is incorporated herein by reference.
1.41. “Professional Services” means implementation, configuration, consulting, training, integration, custom development, or other professional services related to the Services purchased by Customer from Smackdab.
1.42. “Renewal Subscription Term” means each subsequent renewal period for the subscription following the Initial Subscription Term.
1.43. “Security Policy” means Smackdab’s Security Policy located at https://smackdab.ai/legal/security, incorporated herein by reference.
1.44. “Service” or “Services” means the subscription-based access to and use of the Smackdab software, Platform, and associated functionalities as specified in the applicable Order Form(s) and further described in the Documentation or any “Services Description” document. This includes any related Documentation, Support Services, APIs, software clients, and Updates. Services exclude Beta Services and Professional Services unless otherwise specified.
1.45. “Service Level Agreement” or “SLA” means Smackdab’s Service Level Agreement, located at https://smackdab.ai/legal/sla, specifying service level commitments (including, without limitation, Service Availability/Uptime percentages, support response times, data backup frequency, Recovery Point Objective (RPO), and Recovery Time Objective (RTO)) for the Services and remedies (such as service credits) for failure to meet such commitments. The SLA is incorporated herein by reference.
1.46. “Smackdab IP” means the Services, Software, Platform, Documentation, Beta Services, AI Features (excluding Customer-owned outputs as specified herein), Smackdab’s Confidential Information, Smackdab trademarks, logos, and service marks, the underlying software, hardware, technology, algorithms, processes, methodologies, know-how, designs, user interfaces, aggregate data, Usage Data, and any and all improvements, modifications, derivative works, and Intellectual Property Rights related to any of the foregoing, and explicitly includes Background IP.
1.47. “Software” means the underlying software code and applications that constitute the Platform and provide the Services.
1.48. “Subscription” means the right granted by Smackdab to Customer and its Authorized Users to access and use the Services during the Subscription Term.
1.49. “Subscription Term” or “Term” means the Initial Subscription Term together with all Renewal Subscription Terms, or the term of this Agreement as defined in Section 9.1.
1.50. “Support Services” means the technical support services provided by Smackdab for the Services as described in the SLA or as specified in an Order Form.
1.51. “Taxes” means any and all applicable taxes, levies, duties, or similar governmental assessments, excluding only taxes based solely on Smackdab’s net income.
1.52. “Third-Party Applications” means web-based, mobile, offline, or other software applications, functionalities, data sources, services, or platforms provided by third parties that may interoperate with the Services.
1.53. “Updates” means enhancements, improvements, bug fixes, patches, new features, or other modifications to the Services released by Smackdab.
1.54. “Usage Data” means anonymized or aggregated data collected by Smackdab regarding the access and use of the Services by Customer and its Authorized Users, including technical information and statistical or analytical information derived from the operation of the Services. Usage Data does not identify Customer, its Affiliates, Authorized Users, or any individual natural person.
1.55. “User” means an Authorized User as defined in Section 1.8.
**2. SCOPE OF SERVICE AND LICENSE GRANT**
*Summary: This section outlines the specific services Smackdab provides under the agreement, the license granted to the Customer to use these services, and crucial restrictions on that use. It details what Customers are permitted and prohibited from doing with the Service, references the Acceptable Use Policy, and covers usage limits, service updates, and specific terms for Free Services and Beta Services.*
2.1. Provision of Services. Subject to Customer’s compliance with this Agreement (including timely payment of Fees for paid Services) and the applicable Order Form(s), Smackdab grants Customer a limited, non-exclusive, non-transferable (except as expressly permitted in Section 15.4), non-sublicensable, revocable (in accordance with Section 9), worldwide right during the applicable Subscription Term to access and use the Services (including the functionalities, modules, and AI Features specified in the Order Form and further described in the Documentation or applicable Services Description document referenced in Section 1.43) and Documentation, solely for Customer’s internal business operations, by the number of Authorized Users and within any other usage limits (e.g., data storage, contact limits, feature access, API call volume) specified in the Order Form or Documentation.
2.2. Usage Restrictions. Customer shall not, and shall not permit any Authorized User or third party to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than Authorized Users in furtherance of its internal business purposes as expressly permitted by this Agreement; (b) modify, copy, or create derivative works based on the Services or Smackdab IP, except as expressly permitted herein or for Deliverables as per Section 5.4; (c) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services or any Software, Documentation, or data related to the Services (except to the extent such restriction is prohibited by Applicable Law); (d) access the Services for the purpose of building a competitive product or service or copying its features or user interface; (e) use the Services to store or transmit Malicious Code; (f) interfere with or disrupt the integrity or performance of the Services or data contained therein; (g) attempt to gain unauthorized access to the Services or their related systems or networks; (h) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Smackdab or its licensors on the Services or Documentation; (i) use the Services in violation of the Acceptable Use Policy or Applicable Law; or (j) use the Services for any High Risk Activities as defined in the AUP or where failure could lead to death, personal injury, or severe environmental damage.
2.3. Acceptable Use Policy. Customer’s use of the Services is subject to the AUP (located at https://smackdab.ai/legal/acceptable-use-policy), which is incorporated by reference and may be updated by Smackdab with notice as provided in the AUP. Violations of the AUP may result in suspension or termination of Services.
2.4. Usage Limits & Monitoring. The Services may be subject to usage limits specified in the Order Form or Documentation (e.g., number of Authorized Users, data storage, API calls). Smackdab may monitor Customer’s use of the Services to verify compliance with these limits and this Agreement. If Customer exceeds a contractual usage limit, Smackdab may work with Customer to reduce usage or Customer agrees to execute an Order Form for additional quantities and/or pay any applicable Overage Fees as per the Billing Policies. Customer is not permitted to downgrade its paid Subscription Service tier or reduce quantities during a then-current Subscription Term; downgrades may only take effect upon renewal.
2.5. Updates and New Features. Smackdab may provide Updates to the Services. Major new features, modules, or functionalities not included in Customer’s current subscription tier may be offered as separate add-ons subject to additional Fees and agreement to supplemental terms, if any.
2.6. Free Services and Trials.
(a) If Customer registers for or uses Free Services (including any free trial period for paid Services), Smackdab will make the applicable Services available to Customer free of charge until the earlier of (i) the end of the free trial period (if applicable), (ii) the start date of any purchased Subscription Services ordered by Customer for such Services, or (iii) termination by Smackdab in its sole discretion.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, OR INDEMNIFICATION OBLIGATIONS OF ANY KIND. ANY DATA CUSTOMER ENTERS INTO FREE SERVICES MAY BE PERMANENTLY LOST OR DELETED AT THE END OF THE FREE SERVICE PERIOD OR UPON TERMINATION OF THE FREE SERVICES BY SMACKDAB WITHOUT NOTICE, AND SMACKDAB WILL HAVE NO OBLIGATION TO RETAIN, EXPORT, OR RETURN SUCH CUSTOMER DATA.
(c) Smackdab may suspend, limit, or terminate Free Services for any reason at any time without notice and without liability to Customer. Additional terms and conditions may appear on the registration page for a free trial or Free Service; any such additional terms are incorporated into this Agreement by reference and are legally binding.
2.7. Beta Services. Use of Beta Services is governed by the Beta/Early Access Terms located at https://smackdab.ai/legal/beta-terms.
**3. CUSTOMER RESPONSIBILITIES**
*Summary: This section details the obligations of the Customer. These include managing Authorized Users, ensuring the legality and accuracy of Customer Data, complying with all applicable laws (including data protection laws, HIPAA if applicable, and export compliance), maintaining account security, and promptly notifying Smackdab of any unauthorized use of the account or Services.*
3.1. Authorized Users. Customer is responsible for managing its Authorized Users, ensuring their compliance with this Agreement, and for all activities that occur under its accounts and by its Authorized Users, whether authorized or not. Customer shall: (a) ensure the total number of Authorized Users does not exceed the purchased subscription limit; (b) assign unique login credentials (e.g., username and strong password) to each Authorized User and prohibit sharing of such credentials; (c) maintain the confidentiality and security of all user credentials and account information, including by enforcing strong password policies and encouraging the use of multi-factor authentication if available; (d) use commercially reasonable efforts to prevent unauthorized access or use, and notify Smackdab promptly of any such incident.
3.2. Customer Data. Customer is solely responsible for: (a) the accuracy, quality, content, legality, and integrity of all Customer Data and the means by which Customer acquired it; (b) ensuring it has obtained all necessary rights, consents, licenses, and permissions under Applicable Law (including Data Protection Laws) to collect, store, process, transmit, and use Customer Data with the Services, including providing necessary privacy notices and obtaining consents from Data Subjects.
3.3. Compliance with Laws. Customer shall use the Services in compliance with all Applicable Law, including but not limited to Data Protection Laws, marketing, advertising, and telecommunications laws.
3.4. Security. Customer is responsible for securing its own systems and devices used to access the Services and for implementing appropriate security settings and access controls available within the Services, including managing user permissions.
3.5. Notification of Unauthorized Use. Customer shall promptly notify Smackdab of any unauthorized use of its account, user credentials, or the Services that comes to its attention.
**4. PAYMENT TERMS, FEES, AND TAXES**
*Summary: This section explains the Customer’s financial obligations. It incorporates Smackdab’s Billing Policies by reference, which detail subscription fees, payment schedules, invoicing, consequences of non-payment (like service suspension or late fees), policies on fee increases, and the Customer’s responsibility for applicable taxes. It also notes that fees are generally non-refundable and subscriptions auto-renew unless canceled according to the policies. It specifies that Smackdab will provide an email acknowledgement of cancellation.*
(Reference to Billing Policies) Customer’s financial obligations, including Subscription Fees, payment schedules, invoicing, consequences of non-payment (such as service suspension, late fees, or interest charges), policy on fee increases, and responsibility for taxes, are governed by Smackdab’s Billing Policies located at https://smackdab.ai/legal/billing-policies, which are incorporated herein by reference and form an integral part of this Agreement. Key terms include:
4.1. Fees. Customer shall pay all Fees as specified in the Order Form and the Billing Policies. Payment obligations are non-cancelable and Fees paid are non-refundable, except as expressly provided herein (e.g., Section 10.4 – Warranty Remedies, Section 9.3 – Termination for Cause by Customer, Section 12.2 – IP Claim Remedy) or in the SLA.
4.2. Auto-Renewal. Subscriptions automatically renew for subsequent terms of the same duration as the initial term (or as otherwise specified in the Order Form) at Smackdab’s then-current rates, unless canceled in accordance with the Billing Policies and Section 9.2 of this TOS. The Billing Policies provide details on renewal notifications and the cancellation mechanism, which shall be easy to use. Smackdab will provide an email acknowledgement of any cancellation.
4.3. Late Payments and Suspension. Overdue Fees are subject to late charges and may result in service suspension or termination as detailed in the Billing Policies.
**5. PROFESSIONAL SERVICES**
*Summary: This section applies if the Customer purchases additional Professional Services from Smackdab, such as implementation, training, or custom development. It outlines the scope of these services, Smackdab’s performance standards, Customer cooperation requirements, and the ownership and licensing of any resulting deliverables, distinguishing between Smackdab’s background IP and custom work. It also specifies that Professional Services are generally performed remotely unless otherwise agreed and that unused hours or deliverables may expire.*
5.1. Scope. If Customer purchases Professional Services, such services, any Deliverables, and applicable fees will be detailed in an applicable Order Form or SOW, which will be governed by this TOS and any specific terms in such Order Form/SOW.
5.2. Performance. Smackdab will perform Professional Services in a professional and workmanlike manner consistent with industry standards.
5.3. Customer Cooperation. Customer will provide reasonable cooperation, timely access to necessary information, personnel, and resources for Smackdab to perform Professional Services. Delays caused by Customer may result in changes to project timelines and fees.
5.4. Ownership and License of Deliverables.
(a) Smackdab IP and Background IP. Smackdab retains all right, title, and interest in and to all Smackdab IP and Background IP. Nothing herein grants Customer any rights to Smackdab IP or Background IP except the limited licenses expressly set forth.
(b) Deliverables. Unless explicitly agreed otherwise in a signed SOW, Smackdab shall own all right, title, and interest, including all Intellectual Property Rights, in and to any Deliverables. Upon Customer’s full payment for the applicable Professional Services, Smackdab grants Customer a non-exclusive, non-transferable (except as permitted in Section 15.4), non-sublicensable, worldwide, royalty-free license to use such Deliverables internally in connection with its authorized use of the Services during the applicable Subscription Term, subject to the terms of this Agreement.
(c) Customer Materials. Customer grants Smackdab a limited, non-exclusive license to use any materials provided by Customer to Smackdab (“Customer Materials”) solely for the purpose of performing the Professional Services for Customer. Customer retains ownership of its Customer Materials.
5.5. Delivery and Expiration. All Professional Services are performed remotely, unless otherwise agreed in an Order Form or SOW. If Professional Services include a specific number of hours, those hours will expire as indicated in the applicable Order Form or SOW, or if not indicated, one hundred and eighty (180) days from purchase. If deliverables are included, it is estimated they will be completed within the delivery period specified; if not specified, within one hundred and eighty (180) days from purchase. If Professional Services are not completed within the delivery period due to Customer’s failure to provide necessary resources or perform its obligations, such Professional Services will be deemed complete. Fees for Professional Services are non-cancelable and non-refundable.
**6. INTELLECTUAL PROPERTY RIGHTS**
*Summary: This section clarifies ownership of intellectual property. Smackdab owns its platform, software, and related IP. The Customer owns their Customer Data. Customer grants Smackdab a limited license to use Customer Data solely to provide and improve the Service. Smackdab may use anonymized/aggregated Usage Data. Customer feedback becomes Smackdab’s property. Ownership of AI-generated output is also addressed, with Customer generally owning output derived from their specific data, subject to Smackdab’s underlying AI technology rights.*
6.1. Smackdab IP. Smackdab (and its licensors) exclusively owns all right, title, and interest, including all Intellectual Property Rights, in and to the Smackdab IP (as defined in Section 1). No rights are granted to Customer hereunder other than as expressly set forth.
6.2. Customer Data Ownership and License. As between Smackdab and Customer, Customer exclusively owns all right, title, and interest, including all Intellectual Property Rights, in and to all Customer Data. Customer grants Smackdab, its Affiliates, and sub-processors a limited, non-exclusive, worldwide, royalty-free license during the Subscription Term to access, use, process, copy, transmit, display, and modify Customer Data solely to the extent necessary to provide, maintain, secure, support, and (only as explicitly permitted under Section 8.7 regarding AI Features) improve the Services in accordance with this Agreement and the DPA, and as required by Applicable Law. This license includes the right to reproduce, modify, and display Customer Data within the Service as directed or configured by Customer through its use of the Service. This license does not grant Smackdab the right to use identifiable Customer Data for general AI model training for other customers except as explicitly permitted under Section 8.7.
6.3. Usage Data. Smackdab may collect and analyze Usage Data to operate, analyze, improve, develop, and support its Services and offerings. Usage Data is Smackdab IP and will be anonymized or aggregated so it does not identify Customer or any individual.
6.4. Feedback. Customer grants Smackdab a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, non-exclusive, sublicensable, transferable license to use, incorporate, and exploit any Feedback for any purpose without obligation or compensation. Feedback is not Customer Confidential Information.
6.5. AI-Generated Output. (a) Customer Data remains Customer’s property. (b) To the extent AI Features generate new output or insights primarily and uniquely derived from Customer’s specific Customer Data and intended for that Customer’s direct use (“AI Output”), Customer shall own such AI Output. Customer’s ownership of such AI Output is subject to Smackdab’s underlying rights in the AI Features, algorithms, and Smackdab IP used to generate it. (c) Smackdab retains all rights to its AI models, algorithms, and the Smackdab IP. Use of AI Output is subject to the disclaimers in Section 8.8(c).
6.6. Reservation of Rights. Each party reserves all rights not expressly granted herein. No license is granted by implication or estoppel.
**7. CONFIDENTIALITY**
*Summary: This section defines “Confidential Information” (which includes Customer Data as Customer’s CI) and outlines each party’s obligations to protect the other’s confidential information. It specifies the standard of care, restrictions on use and disclosure, exceptions for legally compelled disclosure, and procedures for returning or destroying confidential information upon termination. Confidentiality obligations generally last for five years, with longer periods for trade secrets and Personal Data (governed by the DPA).*
7.1. Definition of Confidential Information. (As defined in Section 1.16). Customer Data is explicitly Customer’s Confidential Information.
7.2. Obligation of Confidentiality. The Receiving Party agrees to: (a) protect the Disclosing Party’s Confidential Information with at least a reasonable degree of care (no less than it uses for its own similar information, and in any event, no less than reasonable care, consistent with industry standards for information of like sensitivity); (b) not use Confidential Information for any purpose outside the scope of this Agreement; and (c) limit access to its and its Affiliates’ personnel and contractors who have a “need to know” for purposes of this Agreement and who are bound by written confidentiality obligations no less protective than those herein. The Receiving Party is responsible for any breaches of this Section by such personnel/contractors.
7.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information if compelled by Applicable Law or valid court order, provided it gives prior notice (if legally permissible and practicable) to the Disclosing Party to allow the Disclosing Party an opportunity to contest the disclosure, and discloses only the minimum information required.
7.4. Return or Destruction. Upon termination or expiration of this Agreement, or upon the Disclosing Party’s written request, the Receiving Party will, at the Disclosing Party’s election, promptly return to the Disclosing Party or securely destroy all Confidential Information of the Disclosing Party in its possession or control, and certify such destruction in writing. This is subject to standard exceptions for legal retention requirements and automated archival backup systems (from which such Confidential Information will be eventually deleted in accordance with standard retention policies), provided that any retained Confidential Information remains subject to these confidentiality obligations for as long as it is retained. Specific procedures for Customer Data deletion post-termination are further detailed in Section 9.5 and the DPA.
7.5. Duration of Confidentiality. Obligations regarding Confidential Information shall survive termination or expiration of this Agreement and continue for five (5) years from the date of disclosure, except for information qualifying as a trade secret under Applicable Law, for which the obligations shall continue as long as such information remains a trade secret. Obligations regarding Personal Data are governed by Section 8 and the DPA.
7.6. Injunctive Relief. Unauthorized use or disclosure of Confidential Information may cause irreparable harm for which monetary damages would be inadequate. Accordingly, the Disclosing Party may seek injunctive or other equitable relief in addition to any other remedies available at law.
**8. DATA PRIVACY, SECURITY, AND AI FEATURES**
*Summary: This section addresses data privacy and security, incorporating Smackdab’s Privacy Policy, Data Processing Addendum (DPA), and Security Policy by reference. It clarifies Smackdab’s role as a data processor for Customer Data, outlines security measures, and details specific terms for AI Features, including data usage for model training (requiring anonymization/aggregation or explicit opt-in for identifiable data), transparency, customer control, and disclaimers regarding AI output accuracy. It also notes that Smackdab honors Global Privacy Control signals as detailed in its Privacy Policy, and clarifies data sharing with AI Service Providers.*
8.1. Privacy Policy. Smackdab’s collection and use of Personal Data for which it is a controller (e.g., Customer account administrator information) is described in the Privacy Policy (located at https://smackdab.ai/legal/privacy-policy), which is incorporated herein by reference. As stated in the Privacy Policy, Smackdab honors Global Privacy Control (GPC) signals from browsers and extensions that support this feature, where required by Applicable Law. Smackdab’s practices regarding children’s data, including compliance with Florida SB 262, are further detailed in the Privacy Policy.
8.2. Data Processing Addendum (DPA).
(a) Applicability and Incorporation: If Customer Data includes Personal Data subject to Data Protection Laws (e.g., GDPR, CCPA) where Smackdab acts as a “data processor” or “service provider” on behalf of Customer (who acts as a “data controller” or “business”), the DPA, located at https://smackdab.ai/legal/data-processing-addendum, shall apply automatically and is hereby incorporated by reference into this Agreement, forming a material part hereof. Customer agrees to the terms of the DPA by accepting this TOS or executing an Order Form incorporating the DPA. For certain Customers or jurisdictions, Smackdab may require separate execution of the DPA.
(b) Core DPA Commitments: The DPA outlines the roles of the parties, the details of processing (subject matter, duration, nature, purpose, types of Personal Data, categories of Data Subjects), Smackdab’s obligations as a processor (including processing on documented instructions, ensuring confidentiality of personnel, implementing security measures, managing sub-processors with Customer notification and objection rights, assisting Customer with Data Subject Rights requests and Data Protection Impact Assessments, notifying Customer of Security Incidents), international data transfer mechanisms (e.g., SCCs), Customer’s audit rights, and data return/deletion upon termination. Nothing in this Agreement limits Customer’s audit rights as set out in the DPA.
(c) Customer Instructions: This Agreement (including the DPA) and any applicable Order Form constitute Customer’s complete and final instructions to Smackdab for the Processing of Personal Data.
8.3. Data Security. Smackdab will implement and maintain appropriate technical and organizational security measures as described in its Security Policy (located at https://smackdab.ai/legal/security) and the DPA, designed to protect Customer Data against accidental or unlawful destruction, loss, alteration, unauthorized disclosure, or access. These measures are designed to be consistent with industry standards and include encryption, access controls, security assessments, and incident response procedures.
8.4. HIPAA and PHI. If Customer is a Covered Entity or Business Associate under HIPAA and uses the Services to process PHI, a separate BAA must be executed. Smackdab’s HIPAA obligations are exclusively governed by such BAA.
8.5. Security Incident Notification. In the event of a Security Incident (as defined in the DPA), Smackdab will notify Customer without undue delay and as further specified in the DPA and Security Policy.
8.6. Data Retention and Deletion. Smackdab’s policies regarding the retention and deletion of Customer Data are outlined in Section 9.5 of this TOS and further detailed in the DPA.
8.7. AI Features – Data Usage and Transparency.
(a) Data Usage for AI Model Training and Service Improvement: Smackdab shall NOT use identifiable Customer Data to train its general AI/ML models that benefit other customers or for broad service improvements UNLESS:
(i) The Customer Data is first fully anonymized and aggregated such that it no longer identifies Customer, its Affiliates, Authorized Users, or any individual natural person, and thereby becomes Usage Data as defined herein, and such use is consistent with the definition of Usage Data; OR
(ii) Customer has provided explicit, informed, and specific opt-in consent for such Service Improvement Data Use with potentially identifiable Customer Data, where such an option is clearly presented by Smackdab for a specific AI Feature or service improvement initiative. Absent such explicit opt-in consent, identifiable Customer Data will not be used for general AI model training that benefits other customers or for broad service improvements beyond the direct provision and enhancement of the Service for that specific Customer. Smackdab will maintain auditable records of such consent.
(b) Processing for AI Feature Functionality: Processing of Customer Data by AI Features that is essential for providing the core, contracted functionality of those AI Features directly to that Customer (e.g., generating a sales forecast based on that Customer’s data as configured by that Customer for its own use) is considered part of the Service delivery and is governed by the general license in Section 6.2 and the DPA.
(c) Transparency and Control: Smackdab will provide clear information, within the Service or Documentation, about how specific AI Features use Customer Data. Where AI Features offer choices regarding data use for model training or service improvement beyond core service delivery (as described in 8.7(a)(ii)), Customer will have access to controls or opt-out mechanisms as appropriate, which will be honored by Smackdab.
(d) AI Service Providers: Smackdab may use third-party service providers (“AI Service Providers”) to provide some elements of the AI Features. Customer acknowledges that its Input and Output, including Customer Data, may be shared with and processed by such AI Service Providers (who shall be treated as sub-processors under the DPA) to enable the functionality of the AI Features, for content moderation, and other purposes consistent with this Agreement and the DPA. Downtime of AI Features resulting from a failure of such AI Service Providers will be excluded from Smackdab’s Service Availability commitments under the SLA as specified in Section 16.5.
8.8. AI Features – Disclaimers and Responsibilities.
(a) Informational Purposes: AI Features and any AI Output are provided for informational and assistive purposes only. They are not intended to replace human judgment or professional advice.
(b) Customer Responsibility: Customer is solely responsible for reviewing, validating, and verifying the accuracy, appropriateness, and suitability of any AI Output before relying on or making decisions based upon it. Customer acknowledges that AI Outputs may contain errors, inaccuracies, or biases and that use of AI Features is at Customer’s sole risk. Customer is responsible for complying with all Applicable Laws related to its use of AI Features and AI Output, including ensuring that its use does not infringe third-party rights or violate privacy laws.
(c) Disclaimer of Liability for AI Outputs: Except as otherwise mandated by Applicable Law or expressly agreed in writing, and without limiting the general disclaimers in Section 10, Smackdab disclaims all liability for any decisions made, actions taken, or results obtained by Customer in reliance on AI Features or AI Outputs without appropriate human oversight and independent verification by Customer. Smackdab is not liable for any harm or damages arising from the use of AI Outputs if Customer fails to exercise reasonable judgment and diligence in their use.
**9. TERM, TERMINATION, AND RENEWAL**
*Summary: This section defines the duration of the agreement (Term) and subscription periods. It details conditions for auto-renewal and how either party can terminate the agreement, either for cause (e.g., material breach) or for convenience (with specific rules for refunds and fee acceleration). Crucially, it outlines the procedures for Customer Data retrieval (a 30-day window post-termination for export) and Smackdab’s subsequent data deletion timelines from active systems and backups. It also specifies which obligations survive termination and covers Smackdab’s rights to suspend service.*
9.1. Term of Agreement. Commences on Effective Date and continues until all Subscription Terms under all Order Forms have expired or have been terminated in accordance with this Agreement (“Term”).
9.2. Subscription Term and Auto-Renewal. Initial Subscription Term as per Order Form. Unless otherwise specified in an Order Form or terminated earlier pursuant to this Agreement, Subscriptions will automatically renew for successive periods equal in duration to the Initial Subscription Term (or one year if longer, or as otherwise specified in the Order Form), unless either party gives the other written notice of non-renewal at least thirty (30) days (or such other period as specified in the Order Form or required by Applicable Law for Customer notice to Smackdab regarding non-renewal) before the end of the current term. Details regarding auto-renewal notifications and cancellation procedures are in the Billing Policies (https://smackdab.ai/legal/billing-policies) and must comply with Applicable Law, including requirements for clear and conspicuous disclosure of renewal terms and easy-to-use cancellation mechanisms. Smackdab will provide an email acknowledgement of any cancellation.
9.3. Termination for Cause. Either party may terminate this Agreement or an applicable Order Form for cause: (a) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (b) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Smackdab may also terminate for cause if Customer flagrantly or repeatedly violates the AUP, or if Smackdab determines, in its reasonable discretion, that Customer is acting, or has acted, in a way that has or may negatively reflect on or affect Smackdab, its prospects, or its customers. If Customer terminates for Smackdab’s uncured material breach, Customer shall be entitled to a pro-rata refund of any prepaid, unused Fees for the Services covering the remainder of the terminated Subscription Term.
9.4. Termination for Convenience.
(a) By Customer: Except as specifically provided for in this Agreement, Customer may not cancel its subscription prior to the end of its then-current Subscription Term. If Customer chooses to terminate its subscription or this Agreement for convenience, Customer must provide at least thirty (30) days prior written notice to Smackdab. Such termination will be effective at the end of the then-current Subscription Term. Customer will not be entitled to any refund of any prepaid Fees, and any outstanding Fees for the remainder of the then-current Subscription Term(s) shall become immediately due and payable, unless otherwise required by Applicable Law (e.g., for annual prepayments where a pro-rata refund for unused months may be mandated).
(b) By Smackdab: Smackdab may terminate this Agreement or any Order Form for convenience by providing Customer at least ninety (90) days prior written notice and will provide a pro-rata refund of any prepaid, unused Fees for the Services covering the period after the effective date of termination. This right does not apply to Free Services, which may be terminated as per Section 2.6.
9.5. Effect of Termination; Customer Data Retrieval and Deletion.
(a) Cessation of Rights: Upon the effective date of expiration or termination of this Agreement for any reason: (i) all rights and licenses granted by Smackdab to Customer hereunder (including access to the Services for purposes other than data retrieval as specified below) shall immediately cease; (ii) Customer shall immediately cease all use of the Services (except for data retrieval as permitted below) and Smackdab Confidential Information.
(b) Return/Destruction of Confidential Information: Each party shall, upon the request of the other party, return or destroy (and certify destruction of) the other party’s Confidential Information in accordance with Section 7.4.
(c) Customer Data Retrieval: Provided Customer has paid all amounts due and is not in material breach of this Agreement, for a period of thirty (30) days following the effective date of termination or expiration (“Data Retrieval Period”), Smackdab will grant Customer limited access to the Service *solely for the purpose of Customer exporting its Customer Data*. Smackdab will make Customer Data available for export in a common, industry-standard format (e.g., CSV, JSON, or via API subject to then-current API Terms of Use and any applicable data export fees if extraordinary measures are required) as supported by the Service’s standard export tools. Customer is solely responsible for and must complete the export of its Customer Data during the Data Retrieval Period. Smackdab is not obligated to provide data in any other format or through other means not generally available through the Service. Access to other functionalities of the Service will be disabled. For Free Services, Smackdab has no obligation to provide access to or allow retrieval of Customer Data post-termination or expiration, and such data may be permanently deleted without notice.
(d) Customer Data Deletion: Following the Data Retrieval Period (or immediately upon termination/expiration for Free Services if no retrieval is offered), Smackdab shall have no further obligation to maintain or provide any Customer Data. Smackdab will securely delete Customer Data from its active production systems within ninety (90) days after the end of the Data Retrieval Period (or from termination/expiration of Free Services). Customer Data residing in backup archives will be overwritten or securely destroyed in accordance with Smackdab’s standard backup rotation and data destruction policies, for a maximum total retention, including backups, of no later than 180 days after the end of the Data Retrieval Period, unless a shorter period is mandated by Applicable Data Protection Law for specific Personal Data as detailed in the DPA, or longer retention is strictly required by Applicable Law. Smackdab will not be liable for any Customer Data deletion in accordance with these procedures. This section does not derogate from any specific data deletion obligations or timelines set forth in an applicable DPA, which shall prevail for Personal Data. Client may request earlier deletion, which Smackdab will undertake if commercially feasible and not conflicting with legal obligations.
(e) Payment Obligations: Termination shall not relieve Customer of the obligation to pay any Fees accrued or payable to Smackdab prior to the effective date of termination. If termination is by Smackdab for Customer’s uncured material breach, all future Fees that would have been payable for the remainder of all then-current Subscription Term(s) will become immediately due and payable.
9.6. Suspension Rights.
(a) For Prohibited Acts or Non-Payment: In addition to its rights under Section 4.3 (Late Payments and Suspension) and the Billing Policies, Smackdab may suspend any User’s access to any or all Services without prior notice for: (i) use of the Service in a way that violates Applicable Law, the AUP, or the terms of this Agreement; (ii) use of email services resulting in excessive bounces, SPAM complaints, or removal requests; or (iii) repeated instances of IP infringement. For non-payment, Smackdab will provide notice as per the Billing Policies before suspension.
(b) For Present Harm: If Customer’s or its Users’ use of the Service: (i) is being subjected to or is the source of denial of service attacks or other disruptive activity; (ii) is creating a security vulnerability for the Service or others; (iii) is consuming excessive bandwidth or storage that imminently threatens Service stability; or (iv) is causing or is likely to cause harm to Smackdab or others, then Smackdab may, with electronic or telephonic notice to Customer (which may be contemporaneous with or immediately following the suspension if urgency dictates), suspend all or any access to the Service.
(c) General Suspension Terms: Smackdab will use commercially reasonable efforts to limit any suspension to the affected portion of the Services and to resolve the issues causing the suspension promptly. Smackdab shall not be liable to Customer or any third party for any suspension exercised in accordance with this Section 9.6. Suspension does not relieve Customer of its obligation to pay Fees. Smackdab may charge a re-activation fee to reinstate Services suspended for non-payment or prohibited acts.
9.7. Survival. Sections that by their nature are intended to survive termination or expiration shall survive, including, without limitation: 1 (Definitions), 3.2 (Customer Data ownership), 4 (Payment Terms – for amounts accrued), 5.4 (Professional Services – ownership/license of Deliverables), 6 (Intellectual Property Rights – for ownership and ongoing licenses), 7 (Confidentiality), 8 (Data Privacy – for ongoing obligations, including DPA terms), 9.5 (Effect of Termination), 9.6 (Suspension Rights), 9.7 (Survival), 10 (Disclaimer of Warranties), 11 (Limitation of Liability), 12 (Indemnification), 13 (Governing Law and Jurisdiction), 14 (Dispute Resolution), and 15 (Miscellaneous Provisions).
**10. DISCLAIMER OF WARRANTIES**
*Summary: This section limits Smackdab’s legal promises about the Service. It states the Service is provided “as is” and “as available.” Smackdab disclaims most warranties not explicitly stated, including implied warranties of merchantability and fitness for a particular purpose. It does not guarantee uninterrupted or error-free service. However, it includes a limited express warranty that the Service will materially conform to its documentation, with specific remedies if it doesn’t.*
10.1. “AS IS” AND “AS AVAILABLE”. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT (INCLUDING ANY SPECIFIC WARRANTIES IN AN APPLICABLE SLA REFERENCED IN SECTION 16), THE SERVICES, PROFESSIONAL SERVICES, BETA SERVICES, FREE SERVICES, DOCUMENTATION, SMACKDAB IP, AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
10.2. NO IMPLIED WARRANTIES. SMACKDAB AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE FOREGOING DISCLAIMERS WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND WILL NOT BE LIMITED OR MODIFIED TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.3. NO GUARANTEE OF UNINTERRUPTED OR ERROR-FREE SERVICE. SMACKDAB DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE OF MALICIOUS CODE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SMACKDAB DOES NOT WARRANT THAT THE RESULTS OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, COMPLETE, OR CURRENT. CUSTOMER ACKNOWLEDGES THAT SMACKDAB DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.
10.4. Limited Warranty and Remedies. Smackdab warrants that the paid Subscription Services will perform materially in accordance with the applicable Documentation during the Subscription Term. Customer’s sole and exclusive remedy, and Smackdab’s entire liability, for a breach of this warranty will be, at Smackdab’s option and expense: (a) to use commercially reasonable efforts to correct the non-conformance within thirty (30) days of being notified by Customer; (b) to provide Customer with a functionally equivalent workaround; or (c) if Smackdab cannot achieve (a) or (b) within such thirty (30) day period, Customer may terminate the applicable Order Form for the non-conforming Services and Smackdab shall refund to Customer any prepaid, unused Fees covering the remainder of the Subscription Term for such terminated Services. This warranty does not apply to Beta Services, Free Services, or issues caused by Customer misuse or Third-Party Applications. This section is without prejudice to any specific remedies (e.g., service credits) provided in an SLA.
**11. LIMITATION OF LIABILITY (LoL)**
*Summary: This section limits the financial liability of both Smackdab and the Customer in case of disputes or damages. It excludes liability for indirect or consequential damages (like lost profits). It sets a monetary cap on direct damages, typically tied to the fees paid by the Customer over the preceding 12 months. Certain types of claims, such as Customer’s payment obligations and indemnification, Smackdab’s IP indemnification (itself subject to a super-cap), and liabilities from gross negligence or willful misconduct by either party, are carved out from these general limitations.*
11.1. Exclusion of Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA, OR BUSINESS OPPORTUNITIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2. Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, AND EXCEPT FOR LIABILITIES LISTED IN SECTION 11.3 (EXCLUSIONS FROM LIMITATIONS), IF EITHER PARTY OR ITS AFFILIATES IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY AND ITS AFFILIATES WILL BE LIMITED TO A SUM EQUAL TO THE TOTAL AMOUNTS PAID OR PAYABLE BY CUSTOMER FOR THE SUBSCRIPTION SERVICE IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. FOR BETA SERVICES OR ANY FREE SERVICES, SMACKDAB’S TOTAL LIABILITY SHALL NOT EXCEED ONE HUNDRED U.S. DOLLARS (USD $100.00).
11.3. Exclusions from Limitations (Carve-Outs). THE LIMITATIONS IN SECTION 11.2 SHALL NOT APPLY TO:
(a) Customer’s liability for payment of Fees;
(b) Customer’s liability arising from its indemnification obligations under Section 12.4;
(c) Smackdab’s liability arising from its IP indemnification obligations under Section 12.1 (provided, however, that Smackdab’s total aggregate liability for such IP indemnification obligations shall not exceed two times (2X) the total amounts paid by Customer for the Subscription Service in the twelve (12) month period preceding the event giving rise to the IP Claim);
(d) Customer’s liability for violation of Smackdab’s Intellectual Property Rights;
(e) Liability for damages arising from a party’s gross negligence, willful misconduct, or fraud that cannot be limited under Applicable Law; or
(f) Any liability that cannot be limited or excluded by Applicable Law (such as liability for death or personal injury caused by negligence, to the extent such limitation is prohibited).
Liability for breaches of the DPA or BAA, including for regulatory fines or data subject damages directly attributable to Smackdab’s breach of the DPA, may be subject to different liability provisions if specified therein, and such DPA or BAA provisions shall prevail for such specific data protection matters. Smackdab’s liability for its own breach of confidentiality obligations under Section 7 (excluding those related to Customer Data, which are addressed by the DPA and Security Policy) shall be subject to the general cap in Section 11.2.
11.4. Third-Party Products. SMACKDAB AND ITS AFFILIATES DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY APPLICATIONS THAT CUSTOMER USES IN CONNECTION WITH THE SERVICES. SMACKDAB’S LICENSORS WILL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
11.5. Agreement to Liability Limit / Essential Basis. CUSTOMER UNDERSTANDS AND AGREES THAT ABSENT CUSTOMER’S AGREEMENT TO THIS LIMITATION OF LIABILITY, SMACKDAB WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO CUSTOMER. THE PARTIES AGREE THESE LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN AND REFLECT A REASONABLE ALLOCATION OF RISK.
**12. INDEMNIFICATION**
*Summary: This section describes how each party will protect the other from certain third-party lawsuits. Smackdab will generally defend the Customer if the Service itself infringes a third party’s intellectual property rights. The Customer will defend Smackdab against claims arising from Customer Data or the Customer’s misuse of the Service. It outlines the procedures for handling such claims and specific exclusions.*
12.1. Indemnification by Smackdab. Smackdab will defend Customer, its Affiliates, officers, directors, and employees (“Customer Indemnified Parties”) against any third-party Claim alleging the authorized use of the Services (excluding Third-Party Applications and Customer Data) infringes a valid U.S. patent, copyright, or trademark, or misappropriates a trade secret of such third party (“IP Claim”). Smackdab will indemnify Customer Indemnified Parties for any damages, reasonable attorney fees, and costs finally awarded against them as a result of, or for amounts paid by them under a settlement approved in writing by Smackdab of, an IP Claim. This obligation is conditioned upon: (a) the Customer Indemnified Party promptly giving Smackdab written notice of the IP Claim (failure to provide prompt notice shall only relieve Smackdab of its obligations to the extent it is materially prejudiced thereby); (b) Smackdab having sole control of the defense and settlement of the IP Claim (provided Smackdab may not settle any IP Claim unless the settlement unconditionally releases the Customer Indemnified Party of all liability and does not require any admission of fault or payment by the Customer Indemnified Party without its prior written consent, not to be unreasonably withheld); and (c) the Customer Indemnified Party providing Smackdab with all reasonable assistance, at Smackdab’s expense.
12.2. Exclusions and Mitigation (Smackdab IP Indemnity). Smackdab will have no liability or obligation under Section 12.1 if the IP Claim arises from: (a) use of the Services not in accordance with this Agreement or Documentation; (b) any modification of the Services by anyone other than Smackdab or its authorized contractors; (c) the combination, operation, or use of the Services with any hardware, software, data, or materials not supplied by Smackdab or specified in the Documentation, if the alleged infringement relates to such combination; (d) Customer Data or Third-Party Applications; (e) Smackdab’s compliance with designs, specifications, or instructions provided by Customer; (f) use of a superseded or altered release of the Services if infringement would have been avoided by use of a current, unaltered release made available to Customer; or (g) Beta Services or Free Services. If the Services become, or in Smackdab’s opinion are likely to become, the subject of an IP Claim, Smackdab may, at its option and expense: (i) procure for Customer the right to continue using the Services; (ii) replace or modify the Services to be non-infringing, provided such modification or replacement provides substantially equivalent features; or (iii) if options (i) and (ii) are not commercially reasonable, terminate the applicable Order Form and refund Customer any prepaid, unused Fees for the infringing Services.
12.3. Sole Remedy (Smackdab IP Indemnity). THIS SECTION 12.1 AND 12.2 STATE SMACKDAB’S ENTIRE LIABILITY AND THE CUSTOMER INDEMNIFIED PARTIES’ SOLE AND EXCLUSIVE REMEDY FOR IP CLAIMS.
12.4. Indemnification by Customer. Customer will defend Smackdab, its Affiliates, officers, directors, and employees (“Smackdab Indemnified Parties”) against any third-party Claim arising from or related to: (i) Customer Data, including any Claim that Customer Data infringes third-party rights or violates Applicable Law; (ii) Customer’s or its Authorized Users’ use of the Services in breach of this Agreement, the AUP, or Applicable Law (including but not limited to TCPA, CAN-SPAM, Data Protection Laws); (iii) any of the circumstances described as Excluded Claims in Section 12.2 if attributable to Customer; or (iv) Customer’s breach of its obligations under Section 7 (Confidentiality) or Section 8 (Data Privacy and Security) not directly covered by Smackdab’s own security obligations. Customer will indemnify Smackdab Indemnified Parties for any damages, reasonable attorney fees, and costs finally awarded against them as a result of, or for amounts paid by them under a settlement approved in writing by Customer of, such a Claim. This obligation is conditioned upon: (a) the Smackdab Indemnified Party promptly giving Customer written notice of the Claim (failure to provide prompt notice shall only relieve Customer of its obligations to the extent it is materially prejudiced thereby); (b) Customer having sole control of the defense and settlement of the Claim (provided Customer may not settle any Claim unless the settlement unconditionally releases the Smackdab Indemnified Party of all liability and does not require any admission of fault or payment by the Smackdab Indemnified Party without its prior written consent, not to be unreasonably withheld); and (c) the Smackdab Indemnified Party providing Customer with all reasonable assistance, at Customer’s expense.
**13. GOVERNING LAW AND JURISDICTION**
*Summary: This section specifies that the laws of the State of Florida, USA, will govern the agreement, without regard to conflict of law principles. It also establishes that legal disputes not subject to arbitration will be handled exclusively by state and federal courts located in Collier County, Florida.*
13.1. Governing Law. Florida law, USA, without regard to conflicts of laws rules that would require the application of the laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) do not apply.
13.2. Venue. Subject to Section 14 (Dispute Resolution), state and federal courts in Collier County, Florida, USA, have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Parties consent to this jurisdiction and venue.
**14. DISPUTE RESOLUTION (BINDING ARBITRATION)**
*Summary: This section outlines the process for resolving disputes. It mandates an initial 30-day informal negotiation period. If unresolved, disputes (with some exceptions like injunctive relief or small claims) must be settled by binding arbitration administered by the American Arbitration Association (AAA) in Collier County, Florida. It includes waivers of jury trials and class actions, and provides a 30-day window for Customers to opt out of arbitration. Claims must generally be filed within one year.*
14.1. Mandatory Informal Dispute Resolution. Parties agree to attempt good faith negotiation for at least thirty (30) days after a detailed written Dispute Notice before formal action (except injunctive relief). This is a condition precedent to initiating arbitration or litigation.
14.2. Binding Arbitration. If not resolved informally, disputes (except small claims or injunctive relief for unauthorized use/IP infringement as specified in Section 14.7) shall be settled by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules, as modified by this Agreement. The AAA Supplementary Procedures for Consumer-Related Disputes shall not apply.
14.3. Arbitration Procedures. The arbitration shall be conducted in English and held in Collier County, Florida, USA (or another location mutually agreed upon, or telephonically/virtually at either party’s option if mutually agreed and permitted by AAA rules for commercial disputes). It will be conducted by a single, neutral arbitrator mutually agreed upon or appointed per AAA Commercial Rules. If the relief sought is USD $10,000 or less, arbitration will be based solely on written submissions unless the arbitrator deems a hearing necessary. For claims over USD $10,000, the right to a hearing is per AAA Commercial Rules. The arbitrator’s decision will be final and binding. The arbitrator can award monetary damages and any non-monetary remedy available under applicable law, AAA Commercial Rules, and this Agreement, but not for anyone not a party to the arbitration. A reasoned written decision will be issued.
14.4. Arbitration Fees. Payment of filing, administration, and arbitrator fees will be governed by AAA Commercial Rules. Smackdab will reimburse Customer for those fees for claims totaling less than USD $10,000 unless the arbitrator determines claims are frivolous. Each party bears its own attorneys’ fees unless arbitration rules and/or applicable law provide otherwise.
14.5. WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
14.6. CLASS ACTION WAIVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY AGREES THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. EACH PARTY WAIVES ANY RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR MEMBER. IF A CLAIM PROCEEDS IN COURT RATHER THAN ARBITRATION, EACH PARTY WAIVES JURY TRIAL AND AGREES TO INDIVIDUAL BASIS ONLY. This class action waiver is a material and essential part of this arbitration agreement and is not severable. If any portion of this class action waiver is found to be illegal or unenforceable, this entire arbitration agreement shall be unenforceable.
14.7. Exceptions to Arbitration. Notwithstanding the foregoing, either party may bring a lawsuit in the courts specified in Section 13.2 solely for injunctive or other equitable relief to stop unauthorized use or abuse of the Services, security breaches, or intellectual property infringement or misappropriation without first engaging in informal dispute resolution or arbitration. If a dispute qualifies, either party may pursue it in a small claims court in Collier County, Florida, on an individual, non-class basis.
14.8. 30-Day Right to Opt Out of Arbitration. Customer may opt out of the binding arbitration provisions of this Section 14 by sending written notice (“Opt-Out Notice”) to Smackdab at the address in Section 15.1, within thirty (30) days after the Effective Date of this Agreement. The Opt-Out Notice must include: (i) Customer’s full legal name and address; (ii) the email address(es) associated with Customer’s account; and (iii) a clear and unequivocal statement that Customer wishes to opt out of the binding arbitration agreement in this Section 14. Late notices are ineffective. If Customer opts out, Smackdab also is not bound by these arbitration provisions for disputes with that Customer.
14.9. Limitation on Time to Initiate Disputes. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
**15. MISCELLANEOUS PROVISIONS**
*Summary: This section contains various standard legal clauses essential for the agreement’s operation and interpretation. These include how notices are given, rights regarding publicity, the independent contractor relationship of the parties, restrictions on assignment, rules for third-party beneficiaries, handling of force majeure events, the “entire agreement” clause establishing the hierarchy of documents, severability of invalid provisions, waiver of rights, interpretation guidelines, anti-corruption compliance, terms for U.S. Government end-users, execution of the agreement, Smackdab’s insurance commitments, accessibility statement, procedures for modifying the agreement or service, export compliance, and the controlling language of the agreement. It also includes terms related to Smackdab Marketplace or Community features, if offered.*
15.1. Notices. Written notices under this Agreement shall be deemed effectively given: (a) upon personal delivery; (b) on the second business day after mailing by certified or registered mail, return receipt requested, postage prepaid; (c) on the first business day after sending by nationally recognized overnight courier, charges prepaid; or (d) on the first business day after sending by email (however, email shall not be sufficient for notices of termination for cause, material breach, an indemnifiable claim, or an arbitration Opt-Out Notice, which require delivery via method (a), (b), or (c)). Billing-related notices to Customer will be addressed to the billing contact designated by Customer per the Billing Policies. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer or sent to the primary email address associated with the Customer account. Notices to Smackdab shall be addressed to: Smackdab Inc., Attn: Legal Department, 372 Live Oak Ln, Marco Island, FL 34145, Collier County, USA, with a copy via email to [email protected]. Either party may update its address for notices by providing notice to the other party in accordance with this section.
15.2. Publicity/Marketing. Customer grants Smackdab a limited, revocable right to use Customer’s company name and standard logo as a reference for marketing or promotional purposes on Smackdab’s website and in other public or private communications with existing or potential Smackdab customers, subject to Customer’s standard trademark usage guidelines as provided to Smackdab. Customer may revoke this right at any time for future use by sending an email to [email protected], and Smackdab will use reasonable efforts to cease such use prospectively.
15.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Neither party has any authority to assume or create any obligation on behalf of the other party.
15.4. Assignment. Neither party may assign or transfer any of its rights or delegate any of its obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (such consent not to be unreasonably withheld, conditioned, or delayed). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided that the assignee is not a direct competitor of the other party and agrees in writing to be bound by the terms of this Agreement. Any other purported assignment or delegation in violation of this section shall be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
15.5. No Third-Party Beneficiaries. Except as expressly provided in Section 17.2 (Apple-Enabled Software Applications) and for Indemnified Parties’ rights under Section 12, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
15.6. Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by or results from a Force Majeure Event, which includes acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities, terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic (including COVID-19 and its variants and any related governmental actions or public health guidance), strikes or other labor disputes (other than those involving the affected party’s own employees), restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage, provided that such event is outside the reasonable control of the affected party, was not foreseeable, and the affected party uses diligent efforts to end the failure or delay and minimize its effects. The party affected by the Force Majeure Event shall give prompt written notice to the other party, stating the period of time the occurrence is expected to continue. During the Force Majeure Event, the non-affected party may similarly suspend its performance obligations until such time as the affected party resumes performance. If the Force Majeure Event continues for a continuous period of more than sixty (60) days, either party may terminate any affected Order Forms or this Agreement upon written notice to the other party.
15.7. Entire Agreement and Order of Precedence. This Agreement (including all documents explicitly incorporated by reference, such as all applicable Order Forms, the DPA, any BAA, the AUP, SLA, Privacy Policy, Security Policy, Cookie Policy, DMCA Policy, API Terms of Use, Beta/Early Access Terms, Billing Policies, and any Marketplace Terms or Community Guidelines if applicable) constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior and contemporaneous agreements, proposals, representations, warranties, or negotiations, whether written or oral. No modification, amendment, or waiver of any provision hereof shall be effective unless in writing and signed by authorized representatives of both parties, except as otherwise permitted for modifications by Smackdab in Section 15.16. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) an executed DPA (solely with respect to data protection and processing matters governed thereby); (2) an executed BAA (solely with respect to PHI); (3) the applicable Order Form (solely with respect to commercial terms specific to that order, e.g., pricing, quantity, Service purchased, Subscription Term); (4) this TOS Agreement; (5) the SLA (solely with respect to service level commitments and related remedies); (6) the Security Policy; (7) the API Terms of Use (for API usage); (8) Beta/Early Access Terms (for Beta Services); (9) Billing Policies; (10) any Marketplace Terms or Community Guidelines (for use of those specific features); (11) the AUP; (12) the Privacy Policy (with respect to Smackdab’s processing of Personal Data as a controller); (13) the Cookie Policy; (14) the DMCA Policy; and (15) other Documentation. Terms or conditions in any Customer purchase order or other standard business form issued by Customer are null and void and of no effect, even if signed or acknowledged by Smackdab.
15.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. If such modification is not possible, the invalid or unenforceable provision shall be deemed severed from this Agreement, and the remainder of the Agreement shall continue in full force and effect.
15.9. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion. All waivers must be in writing and signed by an authorized representative of the waiving party.
15.10. Headings and Interpretation. The headings used in this Agreement are for convenience only and shall not affect the interpretation of this Agreement. As used herein, the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation.” The words “shall,” “will,” and “agrees” are mandatory, and “may” is permissive. Unless the context otherwise requires, references herein: (a) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (b) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision.
15.11. Anti-Corruption. Each party will comply with all applicable anti-corruption laws (e.g., U.S. Foreign Corrupt Practices Act, UK Bribery Act). Customer represents it has not received or been offered any illegal or improper bribe, kickback, payment, or thing of value from Smackdab employees/agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate this restriction. Customer will promptly notify Smackdab Legal of any suspected violations.
15.12. Government End Use. Services are “commercial computer software” and “commercial computer software documentation” as defined in FAR 2.101 and DFARS 252.227-7014(a)(1) and (a)(5), as applicable. Use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth in FAR 52.227-19 (Commercial Computer Software – Restricted Rights) and DFARS 252.227-7013(c)(1)(ii) (Rights in Technical Data and Computer Software), as applicable. Manufacturer: Smackdab Inc., 372 Live Oak Ln, Marco Island, FL 34145.
15.13. Execution. This Agreement may be executed in counterparts, which taken together shall constitute one instrument. An electronically transmitted signature (e.g., via PDF, e-signature platform like DocuSign) shall be deemed an original signature for all purposes.
15.14. Insurance. Smackdab will maintain commercially reasonable insurance coverage, which may include Commercial General Liability insurance with limits of no less than $1,000,000 per occurrence and $2,000,000 in the aggregate, Technology Errors & Omissions (Professional Liability) insurance with limits of no less than $1,000,000 per claim and $2,000,000 in the aggregate, and Cyber Liability insurance with limits of no less than $2,000,000 in the aggregate. Upon Customer’s reasonable written request (no more than annually), Smackdab will provide a certificate of insurance as evidence of such coverage, subject to confidentiality obligations.
15.15. Accessibility. Smackdab endeavors to design and maintain the Services striving for conformance with recognized accessibility standards, such as the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA, where feasible and appropriate for the Services offered. Smackdab will make available a Voluntary Product Accessibility Template (VPAT) or similar conformance statement upon request. Customer acknowledges that achieving and maintaining accessibility is an ongoing process and that not all aspects of the Services may be fully accessible at all times. Information about accessibility features can be found in the Documentation or by contacting Smackdab.
15.16. Modifications to Agreement or Service.
(a) To Agreement: Smackdab may modify this Agreement by posting a revised version on its website (https://smackdab.ai/legal/terms-of-service) or otherwise notifying Customer (e.g., via email to the primary account contact or through the Service interface). For material changes, Smackdab will provide at least thirty (30) days’ advance notice before such changes become effective, unless shorter notice is required by Applicable Law or for urgent security reasons. Customer’s continued use of the Services after the effective date of any such changes constitutes acceptance of the modified Agreement. If Customer does not agree to the material changes, Customer’s sole and exclusive remedy is to terminate its account and cease using the Services prior to the effective date of the changes. If Customer terminates due to a material adverse change made by Smackdab to this TOS (and not due to changes required by law or to address security risks), Customer may be entitled to a pro-rata refund of prepaid, unused Fees for the remainder of the then-current Subscription Term, provided such termination occurs within thirty (30) days of the material change taking effect and Customer provides written notice detailing the material adverse effect.
(b) To Service: Smackdab may, in its sole discretion, make Service Modifications. Smackdab will use commercially reasonable efforts to provide prior notice of any material deprecation or discontinuation of core Service functionality, unless such changes are required by law, to address security risks, or are necessitated by Force Majeure Events. Smackdab shall have no liability for any such Service Modifications, provided that core functionality is not materially decreased during a Subscription Term without offering a reasonable alternative, remedy (which might include a pro-rata refund for the remainder of the term if the decrease is significant and no workaround is feasible), or as otherwise specified in an SLA. Notwithstanding the foregoing, for AI Features, Smackdab may make changes that materially reduce functionality or change applicable limits at any time in its sole discretion, as further described in any terms specific to such AI Features or the Documentation.
15.17. Export Compliance. Customer shall comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Customer warrants that it is not named on any U.S. government denied-party list and will not permit any Authorized User to access or use the Service in a U.S.-embargoed country (including, without limitation, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk People’s Republic, and Luhansk People’s Republic regions of Ukraine) or in violation of any U.S. export law or regulation.
15.18. Language. This Agreement is in the English language only, which language shall be controlling in all respects. Any provided translation is for convenience only and shall not be binding nor affect the interpretation of this Agreement.
15.19. Smackdab Marketplace, Directory, and Community Features. If Smackdab offers a marketplace for third-party applications, a partner directory, or community forums (“Community Features”), Customer’s use of such Community Features will be subject to separate terms and conditions or guidelines applicable to those features (“Community Terms”), which will be made available to Customer at the time of accessing or using such features and are hereby incorporated by reference into this Agreement. Smackdab disclaims all liability with respect to third-party applications or content found in or accessed through such Community Features, which are provided by third parties and not by Smackdab.
**16. SERVICE LEVEL AGREEMENT (SLA) SUMMARY**
*Summary: This section provides a high-level overview of Smackdab’s service commitments, detailed in the full Service Level Agreement (SLA) which is incorporated by reference. It covers service availability (uptime), data resiliency (backup, RPO, RTO), support services (availability, response times), and remedies (like service credits) if Smackdab fails to meet these commitments. It also notes that the full SLA contains specific metrics, calculation methods, and exclusions.*
(Note: This section provides a high-level summary of key commitments. The full SLA, located at https://smackdab.ai/legal/sla [Note: Final URL to be confirmed and inserted], is incorporated by reference into this Agreement and its terms shall prevail in case of any conflict with this summary. The SLA details specific metrics, measurement methodologies, calculation of Uptime, definitions of Downtime and Excusable Downtime, claim processes, and detailed exclusions.)
16.1. Service Availability (Uptime). Smackdab commits to a monthly uptime percentage for the core functionalities of the Services (e.g., typically 99.9% or as specified in the applicable Order Form or SLA documentation for Customer’s service tier), excluding Scheduled Maintenance (with advance notice as defined in the SLA) and Excusable Downtime. The SLA details how Uptime is calculated and what constitutes “core functionalities.”
16.2. Data Resiliency (Backup, RPO, RTO). The SLA details Smackdab’s data backup frequency (e.g., daily backups to a separate geographical region) and target Recovery Point Objective (RPO – the maximum acceptable period of data loss, e.g., X hours) and Recovery Time Objective (RTO – the maximum acceptable period to restore service functionality after a declared disaster, e.g., Y hours) for Customer Data in the event of a qualifying service disruption. These objectives are subject to the terms and exclusions in the SLA.
16.3. Support Services. The SLA outlines the scope of Support Services, hours of availability (e.g., 24/7 for Critical issues, standard business hours for others, varying by service tier), support channels (e.g., in-app portal, email, phone), and target initial response times based on defined issue severity levels (e.g., Critical, High, Medium, Low).
16.4. Remedies for SLA Failure. If Smackdab fails to meet committed service levels for Uptime or other key metrics as defined in the SLA, Customer may be eligible for service credits against future Subscription Fees. The amount of such credits, conditions for eligibility, and the claim process are specifically detailed in the SLA. Such service credits, if applicable, shall be Customer’s sole and exclusive remedy for any failure by Smackdab to meet such service level commitments.
16.5. Exclusions. The SLA details specific exclusions from service level commitments (e.g., Beta Services, Free Services, issues arising from Customer’s misuse or unauthorized modifications, failures of Customer’s equipment or internet connectivity, Third-Party Applications, failures of third-party AI Service Providers as described in Section 8.7(d), or other circumstances beyond Smackdab’s reasonable control as defined in the SLA).
**17. MOBILE SERVICES AND APPLE-ENABLED SOFTWARE APPLICATIONS**
*Summary: This section addresses terms specific to using Smackdab Services via mobile devices. It notes that carrier charges may apply and that not all mobile services may work with all carriers or devices. It also includes standard terms required by Apple if Smackdab offers an iOS application, outlining responsibilities between Smackdab, the Customer, and Apple regarding the app.*
17.1. Mobile Services. If Services include mobile access, Customer’s wireless service carrier’s standard charges, data rates and other fees may apply. Downloading, installing, or using certain Mobile Services may be prohibited or restricted by Customer’s carrier, and not all Mobile Services may work with all carriers or devices.
17.2. Apple-Enabled Software Applications. Smackdab may offer software applications intended for use with Apple Inc. (“Apple”) products. With respect to such “Apple-Enabled Software”:
(a) This Agreement is between Smackdab and Customer only, not with Apple. Smackdab, not Apple, is solely responsible for the Apple-Enabled Software and its content.
(b) Customer’s use must comply with Apple’s App Store Terms of Service Usage Rules.
(c) The license is non-transferable to use on an iOS Product Customer owns/controls, per Usage Rules (Family Sharing/volume purchasing excepted).
(d) Apple has no maintenance/support obligation for the Apple-Enabled Software.
(e) Apple is not responsible for product warranties. If the Apple-Enabled Software fails a warranty, Customer may notify Apple for a purchase price refund (if any). To the maximum extent permitted by law, Apple has no other warranty obligation. Smackdab is solely responsible for other warranty claims to the extent not disclaimed.
(f) Smackdab, not Apple, addresses Customer/third-party claims relating to the Apple-Enabled Software or its use/possession, including: (i) product liability; (ii) non-conformance to legal/regulatory requirements; (iii) consumer protection claims.
(g) For third-party IP infringement claims related to the Apple-Enabled Software, Smackdab, not Apple, is solely responsible for investigation, defense, settlement, and discharge.
(h) Customer represents they are not in a U.S. embargoed/terrorist-supporting country and not on U.S. prohibited/restricted party lists.
(i) Direct questions/complaints/claims regarding Apple-Enabled Software to Smackdab via the contact methods specified in Section 15.1 or through designated support channels such as [email protected] or the support phone number listed on Smackdab’s website.
(j) Apple and its subsidiaries are third-party beneficiaries of this Agreement regarding Apple-Enabled Software and can enforce it against Customer.
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