SmartCart Service Agreement

Terms and Conditions of Service

Please read this agreement (the "Agreement") between yourself and SmartCart.com and SmartCart, LLC carefully. By registering, signing up, and/or using the SmartCart service, you are agreeing to be bound by the terms of this Agreement and the license granted hereby. If you do not agree to the terms of this license, you should not sign up for or utilize the SmartCart service. You cannot make use of any of SmartCart's and smartcart.com products or services without agreeing to this Agreement and the terms and conditions hereof.

1. General

1.1. Subject to the terms herein, SmartCart, llc. ("SmartCart") offers to permit you to make use of SmartCart's web site, storefronts, web hosting, SmartCart's dedicated servers and mall which use consists of the following (collectively, the "SmartCart Site"):

1.1.1. Storage of your information on a server owned and maintained by SmartCart;

1.1.2. Your use, direct and indirect, of certain software proprietary to SmartCart or licensed by SmartCart from third parties, but only for the purpose of using the SmartCart Site; and

1.1.3. Certain services to be provided by SmartCart such as maintaining the servers, keeping up on security fixes and server operating system updates and backing-up the servers.

1.2. SmartCart shall, at its option, have the right at any time to terminate this Agreement if you breach any of its terms or do anything contrary to the laws and regulations by which SmartCart is bound.

2. License; Payment of Fees

2.1. Subject to the conditions herein, SmartCart hereby grants you a limited, non-transferable, non-exclusive license to store and display information through the SmartCart Site.

2.2. Nothing in this Agreement shall be understood to give you anything more than a license to use SmartCart. SmartCart shall remain the sole owner of the software and components that make up SmartCart and the SmartCart Site. You shall not make copies, decompile or alter the software or any other component of SmartCart or the SmartCart Site.

2.3. In consideration for the granting of a license to store and display information through the SmartCart Site, you agree to pay all fees which are set forth on the SmartCart Site, including but not limited to, annual fees, recurring monthly fees, usage fees, customization charges, per transaction charges and the one-time set-up fee, as applicable. If monthly payment transaction is declined, there could be a small billing fee applied to your account. Failure to remit any of these fees on a timely basis shall be a breach of this Agreement which shall constitute grounds for the termination of services. Customers needing to updating their billing information may use our secure online form: https://www.smartcart.com/contactus/sc_payment.html

2.4 You may cancel your account at any time, although all payments made towards services are nonrefundable. Upon cancellation you will receive a Cancellation Confirmation via email. Retain this for your records. It is proof of your cancellation. If you do not receive this Cancellation Confirmation within 48 hours (or two business days) of canceling, you must notify company immediately.

2.5 If you request custom programming, custom programming services are not provided on a contingency basis. All custom programming charges are required to be paid in full. As with all other payments towards services, custom programming charges are nonrefundable.

2.6 If you update your billing information to a new credit card, you agree to still be bound by the same terms of this agreement in regards to all payments made with the new updated billing information. If you update the billing information with a new account holder, the new account holder must agree to abide by and be bound to the same terms and conditions of service.

2.7 Monthly Payments: Monthly payments will be made by automated recurring credit card or debit card billing. Your monthly fee will automatically be charged to your payment card on or near each due date. Automated billing can be canceled with proper 14 days advance written notice via email. Upon cancellation you will receive an emailed cancellation confirmation. If you do not receive this within 2 business days of canceling, please contact us immediately. There are no refunds on any payments made toward services. The system will automatically expire after the due date if payment is not received.

2.8 Yearly Payments: Yearly payment accounts will receive an invoice 15-30 days before expiration of the account. At that time you may acknowledge to the billing department that you wish to continue the services. Your payment will not be charged without your approval. You may cancel at anytime. There are no refunds on any payments made toward services. The system will automatically expire after the due date if payment is not received.

3. User IDs and Passwords

3.1. You shall be solely responsible for maintaining the security of your User ID and passwords and for preventing their unauthorized use. Should you become aware that any unauthorized person has obtained or attempted access with your User ID or password, then you shall immediately notify SmartCart and change your password.

3.2. The User ID shall be used only by you and you shall not transfer or make the User ID available to any third party.

3.3 Any comments or materials sent to SmartCart including feedback data, such as questions, comments, suggestions or other communications regarding the content of any such documents (collectively "Feedback"), shall be deemed to be non-confidential. SmartCart shall have no obligation of any kind with respect to such Feedback and shall be free to reproduce, use, disclose, exhibit, display, transform, create derivative works and distribute the Feedback to others without limitation. Further, SmartCart shall be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever, including but not limited to, developing, manufacturing and marketing products incorporating such Feedback.

4. User Information and Content

4.1. You shall have the sole responsibility for the preparation of the information and data you store or display through SmartCart. SmartCart shall not be responsible for any damages, fault or error in or arising from your information.

4.2 SmartCart shall have the right, in its sole and absolute discretion, to refuse to allow you to utilize the SmartCart Site based upon the nature and content of the information which you intend to store, transmit or sell through the SmartCart Site and which SmartCart determines to be illegal in any respect. While SmartCart does not actively monitor the content of those merchants using the SmartCart Site, SmartCart further reserves the right to terminate your rights hereunder in the event it discovers at any time that you are storing, transmitting or selling illegal information.

4.3 Copyright Infringement - SmartCart does not condone copyright infringement. We do not, however, needlessly invade our clients' privacy without notice and reasonable suspicion of wrongdoing. SmartCart's Designated Agent for notice of any claimed infringement, as provided for under the U.S. Digital Millenium Copyright Act, is: PJ Estrella, Technical Services Manager, SmartCart, LLC, 9980 So. 300 West STE 200, Sandy, Utah 84070 - Phone: (801) 304-0444 Fax: (801) 304-0444 E-mail: abuse@smartcart.com

In order for SmartCart to review your claim, you must:

Identify the copyrighted work allegedly infringed;
Identify the material which you claim is infringing;
Provide your name, address, telephone number and email address.

In addition, the notification must be signed by an authorized person, and state a good faith belief that the material is infringing, as well as that the information contained in the notice is accurate. In turn, SmartCart will investigate any legitimate complaints, and will take remedial measures where required by law.

5. Interruptions of Service

5.1. You acknowledge that the Internet, related networks and equipment may be subject to unscheduled and unannounced outages and breakdowns, which may not be rectified promptly. You assume full responsibility for backing up your own information and data that you store or display through SmartCart.

6. Limitation of Liability

6.1. YOU UNDERSTAND AND AGREE THAT ANY INFORMATION, MATERIAL AND/OR DATA OBTAINED FROM SMARTCART OR ANY GOODS OR SERVICES OBTAINED THROUGH SMARTCART IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM ANY DOWNLOAD, UPLOAD OR OTHER TRANSACTION.

6.2. YOU AGREE THAT SMARTCART, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SHAREHOLDERS AND AFFILIATES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SMARTCART SITE OR FOR COST OR PROCUREMENT OR SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE SMARTCART SITE, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA OR ARISING FROM ANY OTHER MATTER RELATING TO THE SMARTCART SITE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST OPPORTUNITY OR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF SMARTCART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

YOU FURTHER AGREE THAT SMARTCART, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SHAREHOLDERS AND AFFILIATES SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY INTERRUPTION, SUSPENSION OR TERMINATION OF SERVICE, INCLUDING BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT.

YOU AGREE THAT SMARTCART SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU, OR ANYONE, FOR THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SMARTCART SITE.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

SMARTCART'S LIABILITY TO YOU OR ANY OTHER PARTIES IN ANY CIRCUMSTANCES IS LIMITED TO TEN DOLLARS EACH. SOME STATES MAY NOT ALLOW THIS LIMITATION OF LIABILITY, SO THESE LIMITS ON LIABILITY MAY NOT APPLY TO YOU.

7. Negative Covenants and Indemnification

7.1. You shall not obtain or seek to obtain access or interfere with any programs, information or data maintained by other users of the SmartCart Site.

7.2. You shall not use SmartCart to transmit or store anything illegal for any unlawful purpose.

7.3 "SPAM" Policy (i.e., Unsolicited Email/Fax/Pages/News)

SmartCart has a zero tolerance policy in regards to clients sending unsolicited (email/fax/pages/news) messages. Use of SmartCart services to send unsolicited communications will result in the -IMMEDIATE- termination of your account, and possibly legal action and the collection of fees at $50 per incident and $100 per hour. Communications of this nature sent from other networks but referencing services hosted on SmartCart's networks will also result in account termination. While bulk email is the primary concern, SmartCart's Spam policy applies to all other forms of bulk communications.

SmartCart adheres to the requirements of our provider's Spam Policies. All customers are required to adhere to these policies as well:
XMission "SPAM" Policy (i.e., Unsolicited Email/Fax/Pages/News)

Additional Info:

SmartCart reserves the right to take whatever actions we deem appropriate to enforce these policies. We also reserve the right to change these policies without prior notice at any time. The actions we take may include account suspension or termination. We do not issue any credits for accounts cancelled due to policy violations. We reserve the right to refuse service to anyone at any time for any reason.

SmartCart reserves the right to take whatever measures it deems necessary to secure its networks and clients against abuse. This includes, but is not limited to: scanning for open mail relays, virus filtering, etc. Policy will apply to any activity which affects, mentions or ultimately leads to any SmartCart account, user, network, or server.

SmartCart reserves the right to take legal action against anyone who abuses our network, servers, or services. Fees may also be levied at $50 per incident and $100 per hour to help cover systems administration costs related to an incident.

7.4. You agree to indemnify SmartCart, its directors, officers, employees, agents, representatives, shareholders and affiliates against any loss, damage or liability (including legal costs on a full indemnity basis) which may be sustained or incurred as a consequence of your breach of or failure to comply with this Agreement, whether the failure is attributable to yourself or to some other person using your account with or without your permission.

8. Limited Warranty

8.1. THE SMARTCART SITE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

8.2. Information on the SmartCart Site may contain technical inaccuracies or typographical errors. Information may be changed or updated without notice. SmartCart may also make improvements and/or changes in the products and/or the programs described in this information at any time without notice.

8.3. SmartCart makes no representations or warranties whatsoever about any other content which you may access through the SmartCart Site. When you access a merchant's storefront or a non-SmartCart web site, please understand that it is independent from SmartCart, and that SmartCart has no control over the content on that storefront or web site. In addition, a link to a merchant's storefront or a non-SmartCart web site does not mean that SmartCart endorses or accepts any responsibility for the content, or the use, of such web site. It is up to you to take precautions to ensure that whatever you select for your use is free of such items and viruses, worms, trojan horses and other items of a destructive nature.

8.4. SmartCart does not represent or endorse the accuracy or reliability of any of the information, content or advertisements (collectively, the "Materials") contained on, distributed through, or linked, downloaded or accessed from any of the services contained on the SmartCart Site (the "Service"), nor the quality of any products, information or other materials displayed, purchased, or obtained by you as a result of any advertisement or any other information or offer in or in connection with the Service (the "Products"). You hereby acknowledge that any reliance upon any Materials shall be at your sole risk.

9. Encryption

9.1. SmartCart assumes no responsibility for any encrypted data that is sent to, stored on or retrieved from the SmartCart or SmartCart's Site(s). The technology used to encrypt data being transmitted to or from SmartCart's server is licensed by SmartCart and SmartCart makes no representations, claims or warranties regarding the viability, integrity or robustness of the encryption used. Further, SmartCart shall not be responsible for the success or failure of the server to properly encrypt data. By using the SmartCart server, you assume the risk that the encryption algorithm may be broken so that the data being transmitted could be visible to others.

10. Miscellaneous

10.1. The SmartCart Site (excluding linked sites) is controlled by SmartCart from its offices within the State of Utah, United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places has laws that may differ from those of Utah, by accessing this web site, both you and SmartCart agree that the statutes and laws of the state of Utah, without regard to the conflicts of laws principles thereof, will apply to all matters relating to this Agreement and the use of the SmartCart Site.

You and SmartCart also agree and hereby submit to the exclusive personal jurisdiction and venue of the Superior Court of Utah and the United States District Court in Salt Lake City, Utah with respect to all matters relating to this Agreement and the use of the SmartCart Site. SmartCart makes no representation that materials on the SmartCart Site are appropriate or available for use in other locations, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access the SmartCart Site from other locations do so on their own initiative and are responsible for compliance with local laws.

If SmartCart prevails in any legal or collections matter, it would be entitled to all reasonable attorney fees allowable by law.

10.2. The Agreement sets forth the entire agreement of the parties and the terms hereof shall control notwithstanding any variance with this Agreement of any order submitted by you.

10.3. Price and availability information is subject to change without notice. In an effort to provide our customers with the most current information, SmartCart will, from time to time, make changes in the contents and in the products or services described on the SmartCart Site.

10.4. The prices advertised on the SmartCart Site are for Internet orders, unless otherwise noted. Prices on some items may differ from those charged at other sites or locations. Prices and the availability of items are subject to change without notice. Any "list prices" used on the SmartCart Site are the manufacturers' suggested retail prices and may not be indicative of the actual selling prices in your area.

Any reference to "savings" used on the SmartCart Site indicates the average savings off the "list price." Your actual savings will vary depending upon the goods purchased and the date of the transaction.

We are not responsible for typographical or photographic errors.

10.5. SmartCart may revise these terms and conditions of use by updating this posting at any time. By using the SmartCart Site, you agree to be bound by any such revisions and should therefore periodically visit this page to determine the then current terms and conditions of use to which you are bound. You agree that, in the event any portion of these SmartCart Site terms and conditions of use are found to be unenforceable, the remainder of the SmartCart Site terms and conditions shall remain in full force and effect.

10.6. SmartCart does not screen, review or control the listings and items being offered to users in the various storefronts, nor does it screen, review or control any of the merchants or other people who utilize SmartCart (each, a "Merchant"). SmartCart does not have any involvement in the completion of your transaction, including but not limited to, any refunds or warranties offered. When you use SmartCart, you and the Merchant are completely responsible for working out the sale and exchange. SmartCart does not have authority to act for either you or a Merchant.

10.7. Because SmartCart is not involved in the transactions between you and Merchants, you hereby release SmartCart, our directors, officers, employees, representatives, agents, shareholders and affiliates from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of, or in any way connected with, listings, uncompleted or completed transactions or items offered or actually sold.