The below terms and conditions govern the use of the SmartKai application (“SmartKai”), which has been made available by Digital Quant Group LLC (“Company”). By using SmartKai, you (“User” or “You”) expressly agree to be bound, without modification, to this Terms and Conditions Agreement (“Agreement”). If you do not agree to be bound to this Agreement, you cannot use SmartKai.
Company reserves the right to change this Agreement at any time, at its sole discretion. If Company makes any changes, it will notify Users at the email address provided by each User, and it will post any such changes here. You are responsible for reviewing any such amendments. Your continued use of SmartKai after posting of an amended Agreement constitutes your acceptance of any such modified terms.
This Agreement was last modified on September 15, 2017.
As long as User has a Paid Subscription to SmartKai, subject to the terms and conditions of this Agreement, User shall have access to use SmartKai for the valid dates of User’s Paid Subscription. From time to time, Company may change, modify, or upgrade the functionality or appearance of SmartKai, which may include the removal of functionality, content, or integrations. SmartKai will be down at certain points for maintenance and upgrades. Company does not and cannot guarantee that User will have continual access or that any particular content will be distributed to the Social Media Platforms.
Subject to the terms and conditions of this Agreement, Company grants User a non-transferable, non-assignable, limited, non-exclusive, revokable license to use SmartKai only as permitted in this Agreement, for the term of User’s Paid Subscription. The password and login information that is assigned to User must be kept confidential, may only be used by User personally, and may not be shared, given, rented, or assigned to any other persons.
Company’s Intellectual Property.
SmartKai is the property of Company, and contains information and data which is protected by copyright, trademark, trade secret, and other such intellectual property laws. User agrees to abide by all copyright notices and trademark restrictions.
User’s Intellectual Property.
User retains all intellectual property rights, including copyrights, over user’s content posted to Social Media Platforms using SmartKai (“User Content”). You grant Company a non-exclusive, non-transferable (except as stated in this Agreement), world-wide, non-sublicensable, limited license to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index User Content for the purpose of your use of SmartKai and SmartKai's integration with the Social Media Platforms.
User may not and may not allow others to:
(a) sell, rent, lease, license, sublicense, or assign use of SmartKai to others;
(b) reverse engineer, decompile, disassemble, or otherwise derive the source code from SmartKai;
(c) alter, modify, adapt, reconfigure, or prepare derivative works of SmartKai;
(d) copy, extract, summarize, distribute, or otherwise use SmartKai in any manner which competes with or substitutes for Company’s distribution of SmartKai to its customers;
(e) use SmartKai to violate the CAN-SPAM Act or the laws of any applicable jurisdiction;
(f) use SmartKai to abuse, defame, harass, threaten, or post illegal content;
(g) use SmartKai to transmit a virus, Trojan horse, worm, hack, or any harmful content;
(h) use SmartKai to gain unauthorized access to SmartKai or any Social Media Platform; or
(i) use SmartKai to post content that infringes upon the copyright, trademark, trade secret, publicity rights, trademarks, or other intellectual property interests of any other person or property.
User will promptly notify Company if User’s SmartKai account has been subject to a security breach, including disclosure of your username or password, or if User has had a security breach to any of User’s integrated Social Media Platform accounts.
Monthly subscriptions may be paid via credit card, as specified in your SmartKai account. Overdue amounts, including bounced payments or chargebacks, will be assessed a late payment charge at a monthly rate of 10% or the maximum provided by law, whichever is less. Company shall have the right to recover expenses including collection costs and reasonable attorney’s fees incurred in collecting overdue amounts.
Company reserves the right to terminate this Agreement and User’s rights hereunder, and to retain all sums paid by User, at Company’s sole discretion. The provisions of the Disclaimer and Limitation of Liability shall survive any termination of this Agreement.
Renewals, Refunds, and Cancellation.
Subscriptions automatically renew each month, and you agree that Company may process your PayPal or credit card payment on your renewal date. You may elect to cancel your Subscription at any time by emailing support. If you cancel your Subscription within 30 days of your initial purchase, you will receive a refund of up to one month of your Paid Subscription fee. Any subsequent cancellations are not subject to refund.
Disclaimer and Limitation of Liability.
TO THE EXTENT ALLOWED BY LAW, COMPANY DOES NOT MAKE ANY WARRANTY REGARDING SMARTKAI, INCLUDING, BUT NOT LIMITED TO, THE MATERIALS, THE SOFTWARE, THE CONTENT, THE SUPPORT, AND/OR THE DOCUMENTATION, OR ANY SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH SMARTKAI, INCLUDING INTEGRATION WITH SOCIAL MEDIA PLATFORMS. SMARTKAI IS LICENSED TO USER “AS-IS” AND “AS-AVAILABLE,” WITHOUT ANY WARRANTY OF ANY NATURE, EXPRESS OR IMPLIED, AND BOTH COMPANY AND SMARTKAI EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION: (A) ANY WARRANTIES AS TO THE AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE MATERIALS, SOFTWARE, CONTENT, SUPPORT, DOCUMENTATION, INFORMATION, PRODUCTS, OR SERVICES WHICH ARE PART OF SMARTKAI; (B) WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT, AND (C) ANY WARRANTY THAT SMARTKAI WILL ALWAYS BE AVAILABLE, ERROR-FREE, ACCESSIBLE, TIMELY, OR SECURE. COMPANY DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR USER CONTENT OR THE BEHAVIOR OF SOCIAL MEDIA PLATFORMS. IN NO EVENT WILL COMPANY, ITS SUBSIDIARIES, AFFILIATES, LICENSORS, EMPLOYEES, AGENTS, OR CONTRACTORS BE LIABLE TO USER FOR ANY DAMAGES OR LOSSES, INCLUDING WITHOUT LIMITATION INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES RESULTING FROM OR CAUSED BY SMARTKAI, THE MATERIALS, THE SOFTWARE, THE CONTENT, THE SUPPORT, THE DOCUMENTATION, OR ANY ERRORS OR OMISSIONS IN SMARTKAI OR THE INTEGRATION WITH SOCIAL MEDIA PLATFORMS, EVEN IF COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY LIABILITY OF COMPANY, ITS SUBSIDIARIES, AFFILIATES, LICENSORS, EMPLOYEES, AGENTS, OR CONTRACTORS, INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR DAMAGES CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, HACKING, TAMPERING, UNAUTHORIZED USE, COMMUNICATIONS LINE FAILURE, THEFT, OR DESTRUCTION OR UNAUTHORIZED ACCESS TO OR ALTERATION OF SMARTKAI OR SOCIAL MEDIA PLATFORMS, OR USE OF RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, CLAIMS OR DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, BUSINESS PROFITS, BUSINESS INTERRUPTION, BUSINESS INFORMATION, DATA LOSS OR CORRUPTION, OR ANY OTHER PECUNIARY LOSS ARISING OUT OF OR RELATING TO THE USE OF OR THE INABILITY TO USE SMARTKAI OR SOCIAL MEDIA PLATFORMS, SHALL BE STRICTLY LIMITED TO THE AMOUNT PAID TO COMPANY BY OR ON BEHALF OF USER IN CONNECTION WITH SMARTKAI IN THE THREE (3) MONTHS PRIOR TO THE CLAIMED INJURY OR DAMAGE. COMPANY DOES NOT REPRESENT OR ENDORSE THE ACCURACY, CURRENTNESS, OR RELIABILITY OF ANY ADVICE, OPINION, STATEMENT OR OTHER INFORMATION DISPLAYED, UPLOADED, OR DISTRIBUTED THROUGH SMARTKAI, INCLUDING BUT NOT LIMITED TO, THE MATERIALS, THE SOFTWARE, THE CONTENT, THE SUPPORT, AND/OR THE DOCUMENTATION. USER ACKNOWLEDGES THAT ANY RELIANCE UPON ANY SUCH OPINION, ADVICE, STATEMENT, OR INFORMATION SHALL BE AT USER’S SOLE RISK. SOME JURISDICTIONS DO NOT ALLOW FOR SOME OF THE LIMITATIONS OR EXCLUSIONS AS SET FORTH HEREIN. USER MAY HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
It is expressly agreed by User and Company that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by binding arbitration in New York, New York, according to the rules of the American Arbitration Association. It is further agreed that a judgment upon any award rendered by an arbitrator may be entered in any court having competent jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In any arbitration arising out of or related to this Agreement, the arbitrator(s) shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
Choice of Law.
This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
The licenses and passwords granted and assigned to User pursuant to this Agreement are personal to User, and under no circumstances may be assigned, sublicensed, or transferred by User without Company’s prior written consent. Any attempted assignment, sublicense, or transfer shall be null and void and shall result in the immediate and automatic termination of the licenses and passwords granted under this Agreement. Company may assign any rights or obligations under this Agreement to any other party, without notice to you.
Warranty and Indemnification.
User represents and warrants that it will not use SmartKai to post content that infringes upon the copyright, trademark, trade secret, publicity rights, trademarks, or other intellectual property interests of any other person or property, or to post content that is in violation of any laws or regulations of any applicable jurisdictions. User agrees to indemnify Company, its affiliates, directors, officers, employees, and agents against all claims and damages arising out of the breach or alleged breach of any representations, warranties, or agreements made by User under this Agreement and User’s use of SmartKai.
If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, or enforceability of the remainder of this Agreement shall not in any way be affected or impaired.
No Joint Venture.
The parties are not engaged in a partnership or joint venture. Nothing in this agreement shall be construed to place the parties in a partnership or joint venture. The parties are not authorized to obligate or bind each other, and are not agents of each other.
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any right hereunder.
The section headings of these Terms are for convenience of reference only and shall not be deemed to alter or affect any provision hereof.
You agree that Company may provide notice to you under this Agreement via the email you provided in your User account, or by placing a banner across the web pages of the SmartKai application. You agree that you are liable and responsible to keep your account information accurate and up to date.
You may provide legal notice to Company via Digital Quant Group LLC, 408 East 92nd Street, 1802, New York - 10128.
Neither Party shall liable hereunder for any failure or delay in the performance of its obligations under this Agreement, except for the payment of money, if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, in which event the non-performing party shall be excused from its obligations for the period of the delay and for a commercially reasonable time thereafter.
This Agreement constitutes the entire agreement between the parties and supersedes all prior or contemporaneous written or oral agreements between them or any of their affiliates, with respect to the subject matter contained herein. This Agreement may not be modified or altered except by written instrument executed by a corporate officer of Company.