Terms and Conditions

June 1st , 2019

1.         Acceptance of the Terms of Use

These terms of use are entered into by and between you (either as an individual or on behalf of the legal entity you represent) and SplitSmart Inc. (“SplitSmart”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, the “Platform Terms of Use”), govern your access to and use of www.splitsmart.com and www.splitsmart.net and related websites (the “Websites”) including any content, functionality, applications, software and services (collectively the “Services”) offered on or through the Websites and any SplitSmart mobile or desktop apps (the “Apps”) (The Websites, Apps and Services are collectively referred to as the “SplitSmart Platform”), whether as a guest or a registered user.

Please read the Terms of Use carefully before you start to use the SplitSmart Platform. By using the SplitSmart Platform, or by clicking to accept or agree to the Platform Terms of Use when this option is made available to you, you accept and agree to be bound and abide by the Platform Terms of Use and the SplitSmart Privacy Policy, found at https://splitsmart.com/privacy-policy/ and incorporated herein by reference. If you do not want to agree to the Platform Terms of Use or the Privacy Policy, you must not access or use the SplitSmart Platform.

This SplitSmart Platform is offered and available to users who are 18 years of age or older and reside in the United States or any of its territories or possessions. By using the SplitSmart Platform, you represent and warrant that you are of legal age to form a binding contract with SplitSmart and meet all of the foregoing eligibility requirements. If you do not meet all of these requirements, you must not access or use the SplitSmart Platform.

2.         Changes to the Terms of Use

SplitSmart may revise and update the Platform Terms of Use from time to time in its sole discretion. All changes are effective immediately when SplitSmart posts them and apply to all access to and use of the SplitSmart Platform thereafter. However, any changes to the dispute resolution provisions set forth in the Governing Law and Jurisdiction section will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on the SplitSmart Platform.

Your continued use of the SplitSmart Platform following the posting of revised Platform Terms of Use means that you accept and agree to the changes. You are expected to check this page frequently, so you are aware of any changes, as they are binding on you.

3.         Accessing the SplitSmart Platform and Account Security

SplitSmart reserves the right to withdraw or amend the SplitSmart Platform, and any Services or material provided on the SplitSmart Platform, in SplitSmart’s sole discretion without notice. SplitSmart will not be liable if for any reason all or any part of the SplitSmart Platform is unavailable at any time or for any period. From time to time, SplitSmart may restrict access to some parts of the SplitSmart Platform, or the entire SplitSmart Platform, to users, including registered users.

You are responsible for:

  • Making all arrangements necessary for you to have access to the SplitSmart Platform.
  • Ensuring that all persons who access the SplitSmart Platform through your internet connection are aware of the Platform Terms of Use and comply with them.

To access the SplitSmart Platform or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the SplitSmart Platform that all the information you provide on the SplitSmart Platform is correct, current and complete. You agree that all information you provide to register with this SplitSmart Platform, post on the SplitSmart Platform, or otherwise, including but not limited to through the use of any interactive features on the SplitSmart Platform, is governed by the SplitSmart Privacy Policy, and you consent to all actions SplitSmart takes with respect to your information consistent with the Privacy Policy.

If you choose, or are provided with, a user name, password or any other piece of information as part of SplitSmart security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this SplitSmart Platform or portions of it using your user name, password or other security information. You will be responsible for all activities that occur under that password.  You agree to notify SplitSmart immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

You also represent and warrant that: (i) you will not select or utilize a user name of another person with intent to impersonate that person; (ii) you will not select or utilize a user name in which another person has rights, if you do not have that person's authorization to use such name; and (iii) you will not select or utilize a user name that SplitSmart in its sole discretion deems offensive.

SplitSmart has the right to disable any user name, password or other identifier, whether chosen by you or provided by SplitSmart, at any time in its sole discretion for any or no reason, including if, in SplitSmart’s opinion, you have violated any provision of the Platform Terms of Use.

4.         Intellectual Property Rights

The SplitSmart Platform and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by SplitSmart, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

The Platform Terms of Use permit you to use the SplitSmart Platform for your personal, non-commercial use only, or for legitimate business purposes relating to your role as a potential or current supplier or customer of SplitSmart subject to any separate agreement (including a Services Agreement) with SplitSmart. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on the SplitSmart Platform, except as follows:

  • Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
  • You may store files that are automatically cached by your Web browser for display enhancement purposes.
  • You may print or download one copy of a reasonable number of pages of the SplitSmart Platform for your own personal, non-commercial use, or for legitimate business purposes relating to your role as a potential or current supplier or customer of SplitSmart, and not for further reproduction, publication or distribution.
  • If SplitSmart provides desktop, mobile or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by SplitSmart’s end user license or services agreement for such applications.

You must not:

  • Modify copies of any materials from the SplitSmart Platform.
  • Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
  • Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the SplitSmart Platform.

Except as otherwise agreed to between you and SplitSmart, you must not access or use for any commercial purposes any part of the SplitSmart Platform or any services or materials available through the SplitSmart Platform.

If you wish to make any use of material on the SplitSmart Platform other than that set out in this section, please address your request to: support@splitsmart.com.

If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the SplitSmart Platform in breach of the Terms of Use, your right to use the SplitSmart Platform will cease immediately and you must, at SplitSmart’s option, return or destroy any copies of the materials you have made. No right, title or interest in or to the SplitSmart Platform or any content on the SplitSmart Platform is transferred to you, and all rights not expressly granted are reserved by SplitSmart. Any use of the SplitSmart Platform not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark and other laws.

5.         Trademarks

The SplitSmart name, SplitSmart logo, and all related names, logos, product and service names, designs and slogans are trademarks of SplitSmart or its affiliates or licensors. You must not use such marks without the prior written permission of SplitSmart. All other names, logos, product and service names, designs and slogans on this SplitSmart Platform are the trademarks of their respective owners.

6.         Prohibited Uses

You may use the SplitSmart Platform only for lawful purposes and in accordance with the Platform Terms of Use. You agree not to use the SplitSmart Platform:

  • In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
  • For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
  • To send, knowingly receive, upload, download, use or re-use any material which does not comply with the Content Standards set out in the Platform Terms of Use.
  • To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.
  • To impersonate or attempt to impersonate SplitSmart, a SplitSmart employee, another user or any other person or entity (including, without limitation, by using e-mail addresses or screen names associated with any of the foregoing).
  • To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the SplitSmart Platform, or which, as determined by SplitSmart, may harm SplitSmart or users of the SplitSmart Platform or expose them to liability.

Additionally, you agree not to:

  • Use the SplitSmart Platform in any manner that could disable, overburden, damage, or impair the site or interfere with any other party's use of the SplitSmart Platform, including their ability to engage in real time activities through the SplitSmart Platform.
  • Use any robot, spider or other automatic device, process or means to access the SplitSmart Platform for any purpose, including monitoring or copying any of the material on the SplitSmart Platform.
  • Use any manual process to monitor or copy any of the material on the SplitSmart Platform or for any other unauthorized purpose without SplitSmart’s prior written consent.
  • Use any device, software or routine that interferes with the proper working of the SplitSmart Platform.
  • Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
  • Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the SplitSmart Platform, the server on which the SplitSmart Platform is stored, or any server, computer or database connected to the SplitSmart Platform.
  • Attack the SplitSmart Platform via a denial-of-service attack or a distributed denial-of-service attack.
  • Otherwise attempt to interfere with the proper working of the SplitSmart Platform.

7.         User Contributions

The SplitSmart Platform may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, blogs, community areas and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the SplitSmart Platform.

All User Contributions must comply with the Content Standards set out in these Terms of Use.

Any User Contribution you post to the SplitSmart Platform will be considered non-confidential and non-proprietary. By providing any User Contribution on the SplitSmart Platform, you grant SplitSmart and its affiliates and service providers, and each of their and SplitSmart’s respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose.

You represent and warrant that:

  • You own or control all rights in and to the User Contributions and have the right to grant the license granted above to SplitSmart and SplitSmart’s affiliates and service providers, and each of their and SplitSmart’s respective licensees, successors and assigns.
  • All of your User Contributions are truthful, accurate, appropriate and comply with applicable law.
  • All of your User Contributions do and will comply with these Terms of Use.

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not SplitSmart, has full responsibility for such content, including its legality, reliability, accuracy and appropriateness.

SplitSmart is not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the SplitSmart Platform.

8.         Monitoring and Enforcement; Termination

SplitSmart has the right to:

  • Remove or refuse to post any User Contributions for any or no reason in its sole discretion. SplitSmart may add, change, discontinue, remove, edit or suspend such User Contributions at any time for any reason without notice to you, without your permission, and without liability.
  • Take any action with respect to any User Contribution that SplitSmart deems necessary or appropriate in SplitSmart’s sole discretion, including if SplitSmart believes that such User Contribution violates the Terms of Use, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the SplitSmart Platform or the public or could create liability for SplitSmart.
  • Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
  • Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the SplitSmart Platform.
  • Terminate or suspend your access to all or part of the SplitSmart Platform for any or no reason, including without limitation, any violation of these Terms of Use.

Without limiting the foregoing, SplitSmart has the right to fully cooperate with any law enforcement authorities or court order requesting or directing SplitSmart to disclose the identity or other information of anyone posting any materials on or through the SplitSmart Platform. YOU WAIVE AND HOLD HARMLESS SPLITSMART AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

However, SplitSmart cannot and does not undertake to review all material before it is posted on the SplitSmart Platform and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, SplitSmart assumes no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. SplitSmart has no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

9.         Content Standards

These content standards (the “Content Standards”) apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Contributions must not:

  • Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
  • Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
  • Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
  • Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and SplitSmart’s Privacy Policy.
  • Be likely to deceive any person.
  • Promote any illegal activity, or advocate, promote or assist any unlawful act.
  • Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
  • Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
  • Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
  • Give the impression that they emanate from or are endorsed by SplitSmart or any other person or entity, if this is not the case.

10.       Copyright Infringement

If you believe that any User Contributions violate your copyright, please see SplitSmart’s Copyright Policy set forth below for instructions on sending SplitSmart a notice of copyright infringement. It is the policy of SplitSmart to terminate the user accounts of repeat infringers.

11.       Reliance on Information Posted

The information presented on or through the SplitSmart Platform is made available solely for general information purposes. SplitSmart does not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. SplitSmart disclaims all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the SplitSmart Platform, or by anyone who may be informed of any of its contents.

The SplitSmart Platform includes content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by SplitSmart, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of SplitSmart. SplitSmart is not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

 

 

12.       Changes to the SplitSmart Platform

SplitSmart may update the content on the SplitSmart Platform from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the SplitSmart Platform may be out of date at any given time, and SplitSmart is under no obligation to update such material.

13.       Information About You and Your Visits to the SplitSmart Platform

All information SplitSmart collects on this SplitSmart Platform is subject to SplitSmart’s Privacy Policy. By using the SplitSmart Platform, you consent to all actions taken by SplitSmart with respect to your information in compliance with the Privacy Policy.

14.       Online Purchases and Other Terms and Conditions

All purchases through the SplitSmart Platform or other transactions for the sale of services or information formed through the SplitSmart Platform or as a result of visits made by you are governed by SplitSmart’s Terms of Service set forth below.

Additional terms and conditions may also apply to specific portions, services or features of the SplitSmart Platform. All such additional terms and conditions are hereby incorporated by this reference into these Terms of Use.

15.       Linking to the SplitSmart Platform and Social Media Features

You may link to SplitSmart’s homepage, provided you do so in a way that is fair and legal and does not damage SplitSmart’s reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on SplitSmart’s part without SplitSmart’s express written consent.

The SplitSmart Platform may provide certain social media features that enable you to:

  • Link from your own or certain third-party SplitSmart Platforms to certain content on the SplitSmart Platform.
  • Send e-mails or other communications with certain content, or links to certain content, on the SplitSmart Platform.
  • Cause limited portions of content on the SplitSmart Platform to be displayed or appear to be displayed on your own or certain third-party SplitSmart Platforms.

You may use these features solely as they are provided by SplitSmart, and solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions SplitSmart provides with respect to such features. Subject to the foregoing, you must not:

  • Establish a link from any SplitSmart Platform that is not owned by you.
  • Cause the SplitSmart Platform or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or in-line linking, on any other site.
  • Link to any part of the SplitSmart Platform other than the homepage.
  • Otherwise take any action with respect to the materials on the SplitSmart Platform that is inconsistent with any other provision of the Platform Terms of Use.

The SplitSmart Platform from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in the Platform Terms of Use.

You agree to cooperate with SplitSmart in causing any unauthorized framing or linking immediately to cease. SplitSmart reserves the right to withdraw linking permission without notice.

SplitSmart may disable all or any social media features and any links at any time without notice in SplitSmart’s discretion.

16.       Links from the SplitSmart Platform

If the SplitSmart Platform contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. SplitSmart has no control over the contents of those sites or resources and accepts no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this SplitSmart Platform, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

17.       Geographic Restrictions

The owner of the SplitSmart Platform, SplitSmart, is based in the state of Colorado in the United States. SplitSmart provides the SplitSmart Platform for use only by persons located in the United States. SplitSmart makes no claims that the SplitSmart Platform or any of its content is accessible or appropriate outside of the United States. Access to the SplitSmart Platform may not be legal by certain persons or in certain countries. If you access the SplitSmart Platform from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

18.       Disclaimer of Warranties

You understand that SplitSmart cannot and does not guarantee or warrant that files available for downloading from the internet or the SplitSmart Platform will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the SplitSmart Platform for any reconstruction of any lost data. SPLITSMART WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SPLITSMART PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SPLITSMART PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

YOUR USE OF THE SPLITSMART PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SPLITSMART PLATFORM IS AT YOUR OWN RISK. THE SPLITSMART PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE SPLITSMART PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER SPLITSMART NOR ANY PERSON ASSOCIATED WITH SPLITSMART MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SPLITSMART PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER SPLITSMART NOR ANYONE ASSOCIATED WITH SPLITSMART REPRESENTS OR WARRANTS THAT THE SPLITSMART PLATFORM, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SPLITSMART PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SPLITSMART PLATFORM OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SPLITSMART PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SPLITSMART PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

SPLITSMART HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

YOU ACKNOWLEDGE AND AGREE THAT ANY TRANSMISSION TO AND FROM THE SPLITSMART PLATFORM IS NOT CONFIDENTIAL AND YOUR COMMUNICATIONS OR USER CONTENT MAY BE READ OR INTERCEPTED BY OTHERS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT BY SUBMITTING COMMUNICATIONS OR USER CONTENT TO SPLITSMART AND BY POSTING INFORMATION ON THE SPLITSMART PLATFORM, NO CONFIDENTIAL, FIDUCIARY, CONTRACTUALLY IMPLIED OR OTHER RELATIONSHIP IS CREATED BETWEEN YOU AND SPLITSMART OTHER THAN PURSUANT TO THESE TERMS OF USE. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU WILL NOT HOLD OR SEEK TO HOLD SPLITSMART OR ANY THIRD-PARTY PROVIDER RESPONSIBLE FOR THE CONTENT PROVIDED BY ANY USER.

19.       Limitation on Liability

IN NO EVENT WILL SPLITSMART, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SPLITSMART PLATFORM, ANY SPLITSMART PLATFORMS LINKED TO IT, ANY CONTENT ON THE SPLITSMART PLATFORM OR SUCH OTHER SPLITSMART PLATFORMS OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SPLITSMART PLATFORM OR SUCH OTHER SPLITSMART PLATFORMS, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

IF YOU ARE DISSATISFIED WITH THE SPLITSMART PLATFORM, YOU DO NOT AGREE WITH ANY PART OF THE PLATFORM TERMS OF USE OR HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST SPLITSMART, ANY THIRD-PARTY PROVIDER OR ANY USER OF THE SPLITSMART PLATFORM, WITH RESPECT TO THE PLATFORM TERMS OF USE, OR THE SPLITSMART PLATFORM, THEN YOUR SOLE AND EXCLUSIVE REMEDY AGAINST SPLITSMART IS TO DISCONTINUE USING THE SPLITSMART PLATFORM. IN ALL EVENTS, SPLITSMART’S TOTAL LIABILITY TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE ARISING OUT OF OR IN CONNECTION WITH THE SPLITSMART PLATFORM IS LIMITED TO THE AMOUNT OF FEES YOU PAY TO SPLITMSMART IN THE TWELVE MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

20.       Indemnification

You agree to defend, indemnify and hold harmless SplitSmart, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of the Platform Terms of Use or your use of the SplitSmart Platform, including, but not limited to, your User Contributions, any use of the SplitSmart Platform's content, services and products other than as expressly authorized in the Platfrom Terms of Use or your use of any information obtained from the SplitSmart Platform.

21.       Governing Law and Jurisdiction

All matters relating to the SplitSmart Platform and the Platform Terms of Use and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction).

Any legal suit, action or proceeding arising out of, or related to, the Platform Terms of Use or the SplitSmart Platform shall be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado in each case located in the City and County of Denver, although SplitSmart retains the right to bring any suit, action or proceeding against you for breach of the Platform Terms of Use in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

22.       Arbitration

At SplitSmart's sole discretion, it may require you to submit any disputes arising from the Platform Terms of Use or use of the SplitSmart Platform, including disputes arising from or concerning their interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Colorado law.

 

 

23.       Limitation on Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE PLATFORM TERMS OF USE OR THE SPLITSMART PLATFORM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

24.       Waiver and Severability

No waiver by SplitSmart of any term or condition set forth in the Platform Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of SplitSmart to assert a right or provision under the Platform Terms of Use shall not constitute a waiver of such right or provision.

If any provision of the Platform Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Platform Terms of Use will continue in full force and effect.

25.       Entire Agreement

The Platform Terms of Use, Privacy Policy, and any other documents referenced in the Terms of Use, and any services agreement or license terms between the parties, including any Terms of Service, constitute the sole and entire agreement between you and SplitSmart with respect to the SplitSmart Platform and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the SplitSmart Platform.

26.       Your Comments and Concerns

The SplitSmart Platform is operated by SplitSmart Inc.

All notices of copyright infringement claims should be sent to the copyright agent designated in SplitSmart’s Copyright Policy as set forth below in the manner and by the means set forth therein.

All other feedback, comments, requests for technical support and other communications relating to the SplitSmart Platform should be directed to: support@splitsmart.com.

 

Copyright Policy

REPORTING CLAIMS OF COPYRIGHT INFRINGEMENT

SplitSmart takes claims of copyright infringement seriously. SplitSmart will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from this site (the “SplitSmart Platform”) infringe your copyright, you may request removal of those materials (or access to them) from the SplitSmart Platform by submitting written notification to SplitSmart’s copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:

  • Your physical or electronic signature.
  • Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the SplitSmart Platform, a representative list of such works.
  • Identification of the material you believe to be infringing in a sufficiently precise manner to allow SplitSmart to locate that material.
  • Adequate information by which SplitSmart can contact you (including your name, postal address, telephone number, and, if available, email address).
  • A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information in the written notice is accurate.
  • A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

SplitSmart’s designated copyright agent to receive DMCA Notices is:

NAME:            DMCA Agent

                        SplitSmart, Inc.

ADDRESS:      8035 Lee Drive, #202, Arvada, CO  80005

EMAIL:            info@splitsmart.com

PHONE:           720-295-2425

 

If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.

Please be aware that if you knowingly materially misrepresent that material or activity on the SplitSmart Platform is infringing your copyright, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.

 

 

COUNTER-NOTIFICATION PROCEDURES

If you believe that material you posted on the SplitSmart Platform was removed or access to it was disabled by mistake or misidentification, you may file a counter-notification with SplitSmart (a “Counter-Notice”) by submitting written notification to SplitSmart’s copyright agent designated above. Pursuant to the DMCA, the Counter-Notice must include substantially the following:

  • Your physical or electronic signature.
  • An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
  • Adequate information by which SplitSmart can contact you (including your name, postal address, telephone number, and, if available, email address).
  • A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
  • A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the SplitSmart Platform may be found) and that you will accept service from the person (or an agent of that person) who provided the SplitSmart Platform with the complaint at issue.

The DMCA allows SplitSmart to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter-Notice.

Please be aware that if you knowingly materially misrepresent that material or activity on the SplitSmart Platform was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys' fees) under Section 512(f) of the DMCA.

REPEAT INFRINGERS

It is SplitSmart’s policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.

 

 

Terms of Service

Last Modified: June 1, 2019

      These SplitSmart Terms of Service (the “Terms of Service” or “Agreement”) set forth the terms and conditions governing the relationship between you (either as an individual or on behalf of the legal entity you represent) (“You” or “Customer”) and SplitSmart, Inc. (“SplitSmart”) relating to the services provided through the use of the SplitSmart Platform (the “Services”).

  1. Services
    1. Platform Terms of Use and Privacy Policy.  By entering into this Agreement, Customer agrees to the SplitSmart Platform Terms of Use, located above, and the SplitSmart Privacy Policy located at www.splitsmart.com/privacypolicy (“Privacy Policy”), which are incorporated herein by reference.  To the extent the Terms of Use or Privacy Policy are inconsistent with the Terms of Service, the Terms of Service shall control.
    2. Changes to Services. SplitSmart reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of SplitSmart’s services to its customers or Customers, the competitive strength of or market for SplitSmart’s services or the Services’ cost efficiency or performance; or (b) to comply with applicable law.
    3. Third Party Services.  SplitSmart may make certain third-party products or services (“Third-Party Services”) available to Customer for which SplitSmart makes no representations, warranties or indemnities and will have no other liability hereunder, notwithstanding anything contained in this Agreement.
  2. Access and Use, Customer Restrictions.
    1. Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with these Terms of Service, SplitSmart hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the term of this Agreement, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use. “Authorized User” means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased.
    2. Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Services, or third-party materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, and third-party materials are and will remain with SplitSmart and the respective rights holders in the third-party materials.
    3. Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other person to, access or use the Services except as expressly permitted by this Agreement and, in the case of Third-Party Services, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
      1. copy, modify or create derivative works or improvements of the Services;
      2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
      3. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;
      4. bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid access credentials;
      5. input, upload, transmit or otherwise provide to or through the Services or SplitSmart systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
      6. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, SplitSmart systems or SplitSmart’s provision of services to any third party, in whole or in part;
      7. remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, including any copy thereof;
      8. access or use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law;
      9. send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
      10. send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, including material harmful to children or violative of third party privacy rights;
      11. send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;
      12. attempt to gain unauthorized access to the Service or its related systems or networks;
      13. access or use the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing software service or product or any other purpose that is to the SplitSmart's detriment or commercial disadvantage; or
      14. otherwise access or use the Services beyond the scope of the authorization granted under this Agreement.
    4. Suspension or Termination of Services. SplitSmart may, directly or indirectly, through disabling technology or other legal means, suspend, terminate, or otherwise deny Customer's, any Authorized User's, or any other person's access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) SplitSmart receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires SplitSmart to do so; or (b) SplitSmart believes, in its discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of SplitSmart; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) the Agreement expires or is terminated. This Section does not limit any of SplitSmart’s other rights or remedies, whether at law, in equity, or under the Terms of Service.
    5. Customer Obligations.  Customer shall: (i) have responsibility for the accuracy, quality, legality, reliability, and appropriateness of all Customer Data and Customer Materials (as defined below); (ii) use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Services; (iii) comply with all applicable laws (including laws regarding privacy and protection of consumer information) in using the Service; (iv) obtain and maintain all computer hardware, software and communications equipment needed to access the Services; (v) retain sole control over the operation, maintenance, and management of, and all access to and use of, the Computer systems, and sole responsibility for all access to and use of the Services; and (vi) otherwise comply with all obligations in the Agreement.
  3. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. SPLITSMART HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
  4. Security.
    1. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer's and its Authorized Users' access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Authorized Users' access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services.
    2. Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.

 

 

  1. Fees; Payment Terms.
    1. Fees. Customer shall pay SplitSmart the fees and expenses set forth in the applicable order between Customer and SplitSmart.
    2. Taxes. All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on SplitSmart’s income.
    3. Payment. Payment will be as set forth in the applicable order form, generally by credit card, PayPal or similar, on a monthly automatic and recurring basis.
  2. Intellectual Property Rights.
    1. Services and SplitSmart Materials/Customer-Specific Content. All right, title and interest in and to the SplitSmart Materials, including all Intellectual Property Rights therein, are and will remain with SplitSmart and, with respect to third-party materials included as part of Third-Party Services, the applicable Third-Party Providers own all right, title, and interest, including all Intellectual Property Rights, in and to the third-party materials. Customer has no right, license, or authorization with respect to any of the SplitSmart Materials except as expressly set forth in this Agreement. All other rights in and to the SplitSmart Materials are expressly reserved by SplitSmart.  “SplitSmart Materials” means the Services, specifications, documentation, and SplitSmart systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, work product, technical or functional descriptions, requirements, plans, or reports, that are provided, created or used in connection with the Services or otherwise comprise or relate to the Services. “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.
    2. Customer Materials License. Customer grants to SplitSmart a limited, non-exclusive, royalty-free right and license during the Term, to use the Customer Materials necessary to fulfill SplitSmart’s obligations under this Agreement, solely for the purpose of providing the Services.  “Customer Materials” means all images, data and other materials provided by Customer to SplitSmart for the purposes of the Agreement, and all content provided by Customer for posting on the SplitSmart Platform.
    3. Feedback. If Customer or any Authorized User transmits or provided any communications or materials to SplitSmart by mail, email, telephone, or otherwise, suggesting or recommending changes to the SplitSmart Services (“Feedback”), SplitSmart is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback.  Customer hereby assigns to SplitSmart on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and SplitSmart is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although SplitSmart is not required to use any Feedback.

 

  1. Term and Termination.
    1. Term. Unless earlier terminated in accordance with this Agreement, this Agreement will continue in effect for the period set forth in the applicable Services order form. Unless written notice of termination is provided by Customer prior to the end of the then current term, the Agreement will automatically renew for additional one month terms. 
    2. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
      1. either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured ninety (90) days (ten (10) days for any failure to pay amounts due) after the non-breaching party provides the breaching party with written notice of such breach;
      2. either party may terminate this Agreement effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
  2. Representations and Warranties.
    1. Customer Representations and Warranties. Customer represents and warrants to SplitSmart that: (a) Customer has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under the Agreement; (b) the Agreement will constitute the legal, valid and binding obligation of such party, enforceable against Customer in accordance with its terms; and (c) Customer has the necessary rights and consents in and relating to the Customer Materials and Customer Data so that, as received by SplitSmart and processed in accordance with the Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law.
    2. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE TERMS OF SERVICE, ALL SERVICES ARE PROVIDED ON AN “AS IS” “WHERE IS” BASIS, AND SPLITSMART DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SERVICES.  SPLITSMART SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SPLITSMART MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR SPLITSMART MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
    3. No Legal Advice. Client acknowledges that SplitSmart does not provide legal advice with regard to Customer’s or any Authorized User’s use of the Services, or that by using the Services, Customer or any Authorized User will be complying with applicable law. The Services are merely a tool to assist Customers with family law matters.  AS SUCH, CUSTOMER AGREES THAT CUSTOMER’S USE AND RELIANCE UPON THE SERVICES IS AT CUSTOMER’S OWN RISK. CUSTOMER FURTHER ACKNOWLEDGES THAT SPLITSMART CANNOT GUARANTEE THAT ANY DATA OR INFORMATION CONTAINED IN OR PROVIDED BY THE SERVICES ARE ACCURATE, CURRENT OR WILL BE UPDATED IN A TIMELY MANNER.  Customer is encouraged to seek the assistance of qualified legal counsel.
  3. Indemnification.  Customer shall indemnify, defend and hold harmless SplitSmart and its officers, directors, employees, agents, stockholders, successors and assigns (each, a “SplitSmart Indemnitee”) from and against any and all losses, damages, liabilities and costs (including reasonable attorneys’ fees) incurred by such SplitSmart Indemnitee in connection with any action or claim by a third party that arises out of or relate to any: (a) Customer Materials or Customer Data; (b) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants or obligations under the Agreement; (c) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with the Agreement; or (d) Customer’s or any Authorized User’s violation or alleged violation of applicable law.
  4. Limitations of Liability.
    1. EXCLUSION OF DAMAGES. IN NO EVENT WILL SPLITSMART OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (b) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (c) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF SPLITSMART UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SPLITSMART IN THE 12 MONTHS IMMEDIATELY PRIOR TO THE ACTION OR CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  5. Force Majeure.  SplitSmart shall not be liable for any default or delay in the performance of any of its obligations under the Agreement if and to the extent such default or delay is caused, directly or indirectly, by (a) fire, flood, earthquake, elements of nature or acts of God; (b) wars (declared and undeclared), acts of terrorism, sabotage, riots, civil disorders, rebellions or revolutions; (c) extraordinary malfunction of third-party Internet infrastructure, data centers or related systems or (d) acts of any governmental authority with respect to any of the foregoing, and provided that such default or delay cannot reasonably be circumvented by the non-performing party through the use of commercially reasonable alternate sources, workaround plans or other commercially reasonable means.
  6. Miscellaneous.
    1.  Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Terms of Service shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    2.  Notices. Any notice to be given under this Agreement shall be in writing and delivered by facsimile, U.S. mail or electronic mail to the address listed below:

If to SplitSmart:

 

SplitSmart, Inc.

8035 Lee Drive, #202

Arvada, CO  80005

 

support@splitsmart.com
 

If to Customer, the email or mailing address set forth in the applicable services order form.

Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, (in each case, with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

  1.  Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
  2.   Entire Agreement. The Agreement, including the Terms of Service, SplitSmart Platform Terms of Use and the Privacy Policy, and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
  3.  Assignment Customer may not assign the Agreement, whether voluntarily, involuntarily, by merger, consolidation, dissolution, operation of law, or in any other manner, without the prior written consent of SplitSmart.  Any purported assignment of rights in violation of this Section is void.
  4.  No Third-Party Beneficiaries. The Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.
  5.  Changes to Terms of Service.  SplitSmart may revise and update these Terms of Service from time to time in its sole discretion.  All changes are effective immediately when they are posted and apply to all access to and use of the Services thereafter.  However, any changes to the dispute resolution provisions set forth in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted. Your continued use of the Services following the posting of revised Terms of Service means that you accept and agree to the changes.  You are expected to check this page frequently, so you are aware of any changes, as they are binding on you.
  6. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
  7.  Governing Law; Forum; Jurisdiction. The laws of the State of Colorado (without giving effect to its conflicts of law principles) shall govern all matters arising out of or relating to this Agreement, including, without limitation, its validity, interpretation, construction, performance and enforcement. Any Party bringing a legal action or proceeding against other party arising out of or relating to this Agreement (a “Covered Proceeding”) must bring such Covered Proceeding in the state or federal court sitting in the City and County of Denver, Colorado (the “Designated Courts”). The parties hereby irrevocably submit to the jurisdiction of the Designated Courts, and further irrevocably waive any objection which they may now or hereafter have to the laying of venue for a Covered Proceeding brought in a Designated Court or any defense of inconvenient forum for the maintenance of such dispute.
  8. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement or the transactions contemplated hereby.
  9. Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of the Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.

 

 

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