123 Smart Pro Service Subscription Service

Last updated: May 29, 2020

This Service Subscription Agreement (“Agreement”) is by and between 123 Smart Pro, LLC. and its Affiliates (collectively, “123 Smart Pro”) and the subscriber set forth on the applicable Service Order (“Subscriber”). This Agreement sets forth the terms pursuant to which Subscriber will be permitted to use certain of 123 Smart Pro’s web-based professional services. The parties agree as follows:

  1. DEFINITIONS
    1. “Account” means a unique account created for Subscriber to access the Subscription Services.
    2. “Add-On Services” means additional services that may be added to the Subscription Services.
    3. “Affiliate” means an entity that controls, is controlled by or is under common control with a party, where “control” means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.
    4. “Client” means a customer of Subscriber for whom Subscriber is purchasing and/or using the Services (if applicable).
    5. “Effective Date” means the date the Service Order is executed by both parties.
    6. “Group” means a unit of usage rights for the Subscription Services. Groups may be set for individual Clients, specific campaigns, etc.
    7. “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, in each case, for their full term and together with any renewals or extensions.
    8. “Mobile Application” means each copy of the 123 Smart Pro mobile application (as upgraded from time to time) downloaded by Subscriber’s users and installed on a mobile device approved by Subscriber for business use.
    9. “Professional Services” means time-and-materials services provided to Subscriber, such as consulting services, onboarding support, etc.
    10. “Scope Limitations” means the limitations on Subscriber’s use of the Subscription Services specified in one or more applicable Service Orders. Scope Limitations may include limits on the volume of data processed by the Subscription Services, and/or a maximum number of users, social media profiles, brand keywords or such other limits as set forth in the Service Order.
    11. “Sensitive Information” means any passwords, credit card or debit card information, personal financial account information, personal health information, social security numbers, passport numbers, driver’s license numbers, employment records, physical or mental health condition or information, any information that would classify as “Special Categories of Information” under EU data protection laws, or any other information that would be subject to Health Insurance Portability and Accountability Act (HIPAA), the Payment Card Industry Data Security Standards (PCI DSS), or other laws, regulations, or industry standards designed to protect similar information.
    12. “Services” means, collectively, Subscription Services, Add-On Services and Professional Services.
    13. “Service Order” means a document setting out the specific details of one or more specific Services to be provided to Subscriber, which is agreed upon and signed by both parties.
    14. “Sites” means www.123SmartPro.com as applicable.
    15. “Subscriber Data” means the data inputted to the Services by or on behalf of the Subscriber for the purpose of using the Services or facilitating Subscriber’s use of the Services.
    16. “Subscription Services” means the subscription services provided by 123 Smart Pro to Subscriber, as identified in one or more Service Orders. The Subscription Services include the use of web-based applications, Mobile Applications (if applicable), technical support, and documentation such as user manuals and online help files.
    17. “Subscription Term” means the Subscription Term set forth in the applicable Service Order for the Services.
  1. SERVICE ORDERS
    1. Service Orders. Once executed by both parties, each Service Order will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other Service Orders. If there is a conflict between the terms of this Agreement and the terms of a Service Order, the terms of this Agreement will control unless the Service Order states that a specific provision of this Agreement will be superseded by a specific provision of the Service Order. 123 Smart Pro will provide, and Subscriber will pay for, all Services set out in each Service Order, subject to the terms of the Service Order and this Agreement.
  1. USE OF THE SERVICES
    1. Use of the Services. Subject to the terms and conditions of this Agreement, 123 Smart Pro grants to Subscriber a limited, non-exclusive, non-transferable, non-sub-licensable right during the term of each Service Order to use the Services set forth therein. Subscriber’s right to use the Services is subject to the Scope Limitations and contingent upon Subscriber’s compliance with the Scope Limitations and the terms of the Service Order and this Agreement. If the Service Order permits usage by Clients, such Clients may use the Services in accordance with the terms of this Agreement. Subscriber shall ensure that each of its Clients complies with the provisions of this Agreement and will be liable for all use of the Services by its Clients. By adding any Client to Subscriber’s account, Subscriber represents and warrants that Subscriber has obtained all necessary authorizations and consents from such Client to bind it to this Agreement. Subscriber agrees that 123 Smart Pro can access its account information as necessary, in 123 Smart Pro’s sole discretion, to provide Subscriber with the Services and any related support. 123 Smart Pro will not disclose such data except if compelled by law, permitted by Subscriber, or pursuant to the terms of the 123 Smart Pro, LLC. Privacy Policy, which is available (the “Privacy Policy”).
    1. Access and Users; Groups. Subscriber is responsible for managing access to its Account and for all information, data, text, messages or other materials that Subscriber’s users post or otherwise transmit via the Services. Subscriber may permit its agents, contractors or service providers to access the Services through its Account, provided that such third party is using the Services on behalf of Subscriber, Subscriber ensures that any person or entity using its Account comply with the terms of this Agreement, and that Subscriber remains responsible for any action taken using its Account. If the Scope Limitations include limits on the number of users, Subscriber will ensure that each user is issued its own credentials and that credentials are not shared by more than one user. If Subscriber uses the Services on behalf of its Clients or if it grants access to the Services to its Clients, Subscriber will be responsible for ensuring that such Clients are not able to access confidential or proprietary information of another Client. Subscriber may only assign one Client to a Group and may not grant access to one Client’s Group to another Client or third party without the assigned Client’s consent. Subscriber hereby represents and warrants that any Subscriber Data has not been collected, stored, and transferred to 123 Smart Pro in violation of any law, regulation, or contractual obligation applicable to Subscriber. Subscriber shall have sole responsibility for the accuracy, quality, and legality of the Subscriber Data and the means by which it acquired the Subscriber Data. With respect to Subscriber’s users and individuals that interact or engage with Subscriber’s social media pages or profiles (including, fans, followers, and other social media audience members) (each, a “Social Media User,” and collectively, “Social Media Users”), Subscriber shall be responsible for establishing the lawfulness of processing under Article 6 of the General Data Protection Regulation 2016/679 and complying with all applicable laws related to privacy and data protection in respect of its use of the Services, its processing of personal data, and any processing instructions it issues to 123 Smart Pro.
    2. Use Restrictions. Subscriber may use the Services solely for its own internal business operations or on behalf of Subscriber’s Clients. Except as otherwise explicitly provided in this Agreement and/or applicable Service Order, Subscriber will not, and will not permit or authorize third parties to: (a) license, sublicense, sell, rent, lease, or otherwise permit third parties to use the Services; (b) use the Services to provide services to third parties (e.g., as a service bureau); (c) circumvent or disable any security or other technological features or measures of the Services; (d) reverse engineer any element of the Services, or use the Services or any of 123 Smart Pro’s Confidential Information (as defined below) to compete with the Services; (e) modify, adapt or hack the Services to falsely imply any sponsorship or association with 123 Smart Pro, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; (f) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services or the components of the Services; (g) use the Services to knowingly post, upload, link to, send or store any content that is defamatory, libelous, fraudulent, derogatory, abusive, obscene, unlawful, hateful, harassing, violent, threatening, racist, or discriminatory, or that contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (h) attempt to use any method to gain unauthorized access to any paid features of the Sites; (i) use automated scripts to collect information from or otherwise interact with the Sites or the Services; (j) deep-link to the Sites for any purpose (other than 123 Smart Pro’s home page), unless expressly authorized in writing by 123 Smart Pro; (k) impersonate any other user of the Services; or (l) use the Services in violation of any social media network acceptable use policy, terms of use (including, but not limited to, the Twitter Terms of Service located at www.twitter.com/tos and the YouTube Terms of Service located at www.youtube.com/t/terms) or any similar policy or terms. Subscriber agrees not to use, and not to knowingly display, distribute, or otherwise make content or information derived from the Services available to any entity for the purpose of: (i) conducting or providing surveillance or gathering intelligence, including but not limited to investigating or tracking individual social media users or their content, or to obtain information on social media users or their content, in a manner that would require a subpoena, court order, or other valid legal process; (ii) tracking, alerting, or other monitoring of sensitive events (including but not limited to protests, rallies, or community organizing meetings); (iii) conducting or providing surveillance, analyses or research that isolates a group of individuals or any single individual for any unlawful or discriminatory purpose or in a manner that would be inconsistent with the individual social media users’ reasonable expectations of privacy; (iv) violating the Universal Declaration of Human Rights (located at http://www.un.org/en/documents/udhr), including, without limitation, Articles 12, 18, or 19; or (v) targeting, segmenting, or profiling individuals based on sensitive personal information, including health (e.g., pregnancy), negative financial status or condition, political affiliation or beliefs, racial or ethnic origin, religious or philosophical affiliation or beliefs, sex life or sexual orientation, trade union membership, data relating to any alleged or actual commission of a crime, or any other sensitive categories of personal information prohibited by law. 123 Smart Pro shall have the right to terminate this Agreement and any Service Order immediately, if 123 Smart Pro reasonably suspects that Subscriber has violated any of the restrictions in this Section 3. If Subscriber is a government entity or an entity performing services on behalf of a government entity, each of Subscriber’s (or Subscriber’s Clients’ or Subscriber’s Affiliates’) use cases for the Services must be approved by 123 Smart Pro prior to use of the Services. Failure to obtain approval for any use case will result in suspension and potential termination pursuant to this section and Section 6 of this Agreement.
    3. Compliance with Laws. Subscriber will use the Services in compliance with all applicable laws and regulations and in a manner that does not infringe on the rights of any third party or violate any third party’s privacy rights.
    4. Prohibition on Sensitive Information. Subscriber represents and warrants that neither Subscriber nor Subscriber’s users will transmit, upload, collect, manage, or otherwise process any Sensitive Information through the Services. Subscriber acknowledges and agrees that 123 Smart Pro will not be liable for any damages that may result from Subscriber’s use of the Services in transmitting, uploading, collecting, managing, or otherwise processing any Sensitive Information.
    5. Protection Against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Services and immediately notify 123 Smart Pro in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by 123 Smart Pro to prevent or terminate unauthorized use of the Services.
    6. Right to Suspend Services. 123 Smart Pro may suspend Subscriber’s or any Client’s use of the Services if 123 Smart Pro reasonably and in good faith believes such suspension is necessary to prevent unauthorized use of the Services or to prevent an ongoing violation of any applicable laws or regulations. 123 Smart Pro will use commercially reasonable efforts to notify Subscriber prior to any such suspension and will only suspend the Services to the extent necessary to prevent such unauthorized use or violation. In addition, if Subscriber fails to timely pay any fees in accordance with the terms of this Agreement and/or any Service Order, 123 Smart Pro may, without limitation to any of its other rights or remedies, suspend performance of the Services until it receives all amounts due.
    7. Reservation of Rights. 123 Smart Pro grants to Subscriber a limited right to use the Services under this Agreement. Subscriber will not have any rights to the Services except as expressly granted in this Agreement. 123 Smart Pro reserves to itself and its licensors all rights to the Services not expressly granted to Subscriber in accordance with this Agreement. 123 Smart Pro and its licensors retain all Intellectual Property Rights in and to the Services.
    8. Statistical Data. Subscriber acknowledges and agrees that 123 Smart Pro shall have the right to utilize data capture, syndication, and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze any non-personally and non-Subscriber identifiable data or information resulting from Subscriber’s use of the Services (“Statistical Data”). Statistical Data may be collected by 123 Smart Pro for any lawful business purpose without a duty of accounting to Subscriber, provided that the Statistical Data is used only in an anonymized, deidentified, or aggregated form, without specifically identifying the source of the Statistical Data. On creation, 123 Smart Pro shall own all Intellectual Property Rights in the Statistical Data.
    9. Feedback. 123 Smart Pro shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback 123 Smart Pro receives from Subscriber.
  2. THIRD PARTY SERVICES
    1. External Sites. The Services may contain links to, or otherwise may allow Subscriber to connect to and use, certain third party products, service or software under separate terms and conditions (collectively, “Third-party Service”) in conjunction with the Services, including certain social media networks and other integration partners. If Subscriber decides to access and use such Third-party Service, Subscriber acknowledges that its use of said Third-party Service is governed solely by the terms and conditions of such Third-party Service (including, but not limited to, the Twitter Terms of Service located at www.twitter.com/tos and the YouTube Terms of Service located at www.youtube.com/t/terms), and 123 Smart Pro does not endorse, is not responsible for, and makes no representations as to such Third-party Service, its content or the manner in which such Third-party Service handles Subscriber’s data. 123 Smart Pro is not liable for any damage or loss arising from or in connection with Subscriber’s access or use of any such Third-party Service, or Subscriber’s reliance on the privacy practices or other policies of such Third-party Service. Subscriber acknowledges that 123 Smart Pro does not control the features and functionality of any Third-party Service and that such Third-party Service may change its features and functionality without any notice to 123 Smart Pro. 123 Smart Pro shall not be liable to Subscriber for any refunds or any damage or loss arising from or in connection with any changes made by a Third-party Service or any resulting changes to the Services.
    2. Integration. The Services may contain features that enable various Third-party Services (such as a social media service like Facebook and Twitter) to be directly integrated into Subscriber’s Account. To take advantage of these features, Subscriber will be required to register for or log into such Third-party Service on their respective websites. By accessing/enabling a Third-party Service within the Services, Subscriber is allowing 123 Smart Pro to pass Subscriber’s log-in information to the Third-party Service for this purpose.
  3. FEES AND PAYMENT
    1. Fees. Subscriber will pay 123 Smart Pro the fees specified in each applicable Service Order. If Subscriber orders additional Services or changes the Services it is receiving, the fees for such additional or changed services will be charged at the then-current pricing for such additional or changed services and commence on the activation date listed in the Service Order. Any resulting change in fees shall be reflected in future invoices. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars. Except as otherwise provided in this Agreement, fees are non-refundable. There are no refunds or credits for partial months of Services, plan downgrades, or refunds for unused time if Subscriber closes its account before the end of the term of any Service Order. Unless otherwise specified in the Service Order, the Services and any Add-On Services purchased by Subscriber during the Subscription Term, will automatically renew for additional periods equal to the length of the Subscription Term unless either party provides written notice to the other party at least thirty (30) days prior to the expiration of the Subscription Term. 123 Smart Pro reserves the right to increase fees upon renewal; provided, however, that such increase shall not exceed 7% over the fees related to the immediately preceding Subscription Term.
    2. Payment Terms. Unless otherwise specified in the applicable Service Order, Subscriber will pay all amounts due within thirty (30) days of the date of the applicable invoice, except for amounts subject to a good faith dispute, provided that (i) Subscriber notifies 123 Smart Pro of any such dispute in writing prior to the date such amounts would otherwise be due; (ii) Subscriber pays any undisputed amounts in accordance with this Section; and (iii) Subscriber cooperates with 123 Smart Pro in promptly resolving such dispute. Except for any amounts disputed by the Subscriber in good faith, any amount not paid when due will be subject to finance charges equal to one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by 123 Smart Pro to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason.
    3. Taxes. Other than net income taxes imposed on 123 Smart Pro, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from its purchase or use of the Services. Taxes will not be deducted from or set off against the fees set forth in the applicable Service Order or invoice.
  4. TERM AND TERMINATION
    1. Agreement Term. This Agreement commences on the Effective Date and will remain in effect while any Service Orders are outstanding.
    2. Service Order Term. Each Service Order will be valid for the term specified on such Service Order unless the Service Order is terminated earlier in accordance with the terms of this Agreement.
    3. Termination for Cause. Either party may terminate a Service Order or this Agreement (i) upon thirty (30) days written notice to the other party of a material breach by the other party if such breach remains uncured at the expiration of such period, or (ii) 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. 123 Smart Pro shall have the right to terminate a Service Order or this Agreement if 123 Smart Pro reasonably determines that Subscriber is acting or has acted in a way that could present substantial reputational harm to 123 Smart Pro or its current or prospective partners or customers.
    4. Post-Termination Obligations. If this Agreement or a Service Order is terminated for any reason, (a) Subscriber will pay to 123 Smart Pro any fees or other amounts that have accrued prior to the effective date of the termination,(b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Subscriber will discontinue all use of the Services. Upon termination of this Agreement or any Service Order, 123 Smart Pro shall have the right to remove Subscriber’s account information and account settings after thirty (30) days, and Subscriber will not be able to recover this data or content (except that content stored/published to third-party websites, that data will remain on said third-party websites pursuant to those website’s terms and conditions). All provisions of this Agreement that, by their nature, are intended to survive termination (including those related to third party claims and limitations on liability) will remain in effect.
  5. CONFIDENTIALITY
    1. Definition of Confidential Information. For the purpose of this Agreement, “Confidential Information” means non-public information of 123 Smart Pro or Subscriber disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, which (i) a reasonable person would consider confidential or (ii) is marked “confidential” or “proprietary” or some similar designation by the disclosing party. Confidential Information will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party other than as a result of a violation of this Agreement by the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (iv) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
    2. Protection of Confidential Information. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees, advisors, agents and other representatives who require access in order to perform its obligations hereunder and who agreed to be bound by these obligations of confidentiality and non-disclosure.
  6. WARRANTIES AND DISCLAIMER
    1. Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
    2. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 8, 123 SMART PRO MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. 123 SMART PRO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ON ITS BEHALF AND ON BEHALF OF ITS LICENSORS. 123 SMART PRO RELIES ON THIRD PARTY DATA SOURCES FOR INFORMATION AND THEREFORE DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICES OR THIRD PARTY DATA WILL ALWAYS BE AVAILABLE. 123 SMART PRO DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK OR ANY OTHER ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS, PROBLEMS RELATED TO THE SERVICES OR ITS USE, LOSS OF PERSONAL CONTENT ON THE SITES NOT WITHIN 123 SMART PRO’S REASONABLE CONTROL.
  7. INTELLECTUAL PROPERTY INFRINGEMENT
    1. Defense and Indemnification. 123 Smart Pro will, at its expense, defend Subscriber and Subscriber’s officers, directors, employees, agents, permitted successors and assigns from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Subscriber alleging that Subscriber’s use of the Services infringes or misappropriates any Intellectual Property Rights of any third party, and indemnify Subscriber from all damages, costs, and attorneys’ fees finally awarded in any such Claim or paid to any third party to settle any such Claim. 123 Smart Pro’s obligation under this section is contingent on : (a) Subscriber giving 123 Smart Pro prompt written notice of the Claim; (b) Subscriber granting 123 Smart Pro full and complete control over the defence and settlement of the Claim; and (c) Subscriber providing assistance in connection with the defence and settlement of the Claim as 123 Smart Pro may reasonably request, at 123 Smart Pro’s cost. Subscriber will not defend or settle any Claim eligible for indemnification under this section without 123 Smart Pro’s prior written consent.
    2. Infringement Remedy. If Subscriber is enjoined or otherwise prohibited from using the Services or a portion thereof based on an allegation that the Services violate any third party Intellectual Property Rights (including a Claim), or if 123 Smart Pro reasonably determines that such prohibition is likely, then 123 Smart Pro will, at its sole expense and option: (a) obtain for Subscriber the right to use the allegedly infringing portions of the Services; (b) modify the allegedly infringing portions of the Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Services with non-infringing items of substantially similar functionality. If 123 Smart Pro determines that the foregoing remedies are not commercially reasonable, then 123 Smart Pro may terminate the impacted Service Order, or portion thereof, and will promptly provide a prorated refund to Subscriber for any prepaid fees received by 123 Smart Pro for any Services that have not yet been performed at the time of termination.
    3. Exclusions from Obligations. 123 Smart Pro will have no obligation under this Section 9 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) any aspects of the Services that are provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Services by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; (d) Subscriber’s failure to use the Services in accordance with written instructions provided by 123 Smart Pro, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Services not made or authorized in writing by 123 Smart Pro where such infringement or misappropriation would not have occurred absent such modification.
    4. Limited Remedy. This Section 9 states 123 Smart Pro’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party Intellectual Property Right by the Services.
  8. SUBSCRIBER INDEMNIFICATION
    1. Subscriber will defend 123 Smart Pro and its officers, directors, employees, agents, successors and assigns from any actual or threatened third party Claim arising out of or based upon (a) Subscriber’s breach of any of its obligations under this Agreement, (b) Subscriber’s use of a Third-party Service, or (c) any of the exclusions stated in Section 9.3, and indemnify 123 Smart Pro from all damages, costs, and attorneys’ fees finally awarded in any such Claim or all amounts that Subscriber agrees to pay to any third party to settle any such Claim. Subscriber’s obligation under this section is contingent on: (a) 123 Smart Pro giving Subscriber prompt written notice of the Claim; (b) 123 Smart Pro granting Subscriber full and complete control over the defense and settlement of the Claim, provided that Subscriber may not settle or defend any Claim unless Subscriber unconditionally releases 123 Smart Pro of all liability and such settlement does not affect 123 Smart Pro’s business or Services; and (c) 123 Smart Pro providing assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request. 123 Smart Pro will not defend or settle any Claim eligible for indemnification under this section without Subscriber’s prior written consent.
  9. LIMITATIONS OF LIABILITY
    1. Exclusion of Consequential and Related Damages. NEITHER PARTY OR ITS AFFILIATES WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, ENHANCED, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE, BUSINESS, OR DATA; BUSINESS INTERRUPTION; OR LOSS OF GOODWILL OR REPUTATION, REGARDLESS OF WHETHER THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING OR ANY LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
    2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF 123 SMART PRO AND ITS RESPECTIVE AFFILIATES OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID AND AMOUNTS ACCRUED BUT NOT YET PAID BY SUBSCRIBER TO 123 SMART PRO UNDER THE APPLICABLE SERVICE ORDER DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). THE FOREGOING LIMITATIONS WILL NOT IN ANY WAY LIMIT SUBSCRIBER’S PAYMENT OBLIGATIONS UNDER SECTION 5 ABOVE. THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN WILL APPLY IN AGGREGATE TO SUBSCRIBER AND ITS AFFILIATES.
    3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY 123 SMART PRO TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
    4. State Prohibition of Limitation of Liability and Disclaimer of Implied Warranties. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. IN THESE STATES, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
  10. MOBILE TERMS
    1. Additional Mobile Application Terms. Use of a Mobile Application requires a mobile device that is compatible with the mobile service. 123 Smart Pro does not warrant that the Mobile Applications will be compatible with any mobile device. Subscriber acknowledges that 123 Smart Pro may from time to time issue upgraded versions of the Mobile Applications and may automatically electronically upgrade the version of the Mobile Applications. Subscriber consents to such automatic upgrading. Standard carrier data charges may apply to use of the Mobile Applications. The additional terms and conditions shall apply with respect to any Mobile Application that 123 Smart Pro provides for use.
  11. GENERAL
    1. Export Compliance and Anti-Corruption. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Subscriber shall not permit users to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation. Subscriber further represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value in connection with this Agreement (excluding any reasonable gifts and entertainment provided in the ordinary course of business).
    2. Federal Government End Use Provisions. If Subscriber is a U.S. federal government end user, the Services are a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to Subscriber with only those rights as provided under the terms and conditions of this Agreement.
    3. Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfil all of the assigning party’s obligations under this Agreement.
    4. Subcontractors. 123 Smart Pro may utilize a subcontractor or other third party to perform its duties under this Agreement so long as 123 Smart Pro remains responsible for all of its obligations under this Agreement.
    5. Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by fax, e-mail, US mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of the applicable Service Order. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier or sending an email or fax.
    6. Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
    7. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of RI, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in RI in connection with any action arising out of or in connection with this Agreement.
    8. Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
    9. Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Services will immediately terminate.
    10. Entire Agreement. This Agreement, including the applicable Service Orders, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. 123 Smart Pro may amend this Agreement from time to time, in which case the new Agreement will supersede prior version. 123 Smart Pro will notify (notice within the application to be deemed sufficient) Subscriber of material changes and direct Subscriber to the latest version of this Agreement. 123 Smart Pro will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, invoice, acceptance, purchase order, confirmation, correspondence, or otherwise, regardless of 123 Smart Pro’s failure to object to such terms, provisions or conditions. This Agreement may be executed in multiple counterparts, and may be signed electronically or via facsimile
    11. Survival. Section 3 (Use of the Services), Section 4 (Third Party Services), Section 5 (Fees and Payment), Section 6 (Term and Termination), Section 7 (Confidentiality), Section 8 (Warranties and Disclaimer), Section 9 (Intellectual Property Infringement), Section 10 (Subscriber Indemnification), Section 11 (Limitation of Liability), and Section 13 (General) will survive any termination of this Agreement.