Please read these Terms of Service (these “Terms”) carefully. These Terms are a binding agreement by and between SalesSmyth, LLC (“SalesSmyth”), a Colorado limited liability corporation with each of its direct and indirect subsidiaries, the “Company”, “us”, or “we”) and (i) each member of, or applicant for membership in, one of the communities operated by us (a “Community”), or (ii) any other visitor to this website and/or other authorized or unauthorized user of any of the Company’s Services, and each such person shall be referred to as “you”.
PLEASE NOTE THAT THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS ONLY; I.E., CASE CONSOLIDATIONS AND CLASS-ACTIONS ARE NOT PERMITTED IN ORDER TO RESOLVE DISPUTES.
If you do not agree with all of the provisions of these Terms, do not submit an application to become a Member, or, if already a Member, do not continue to use your Membership, and otherwise do not access, use or continue to use any of the Services including any part of the Platform or any Company Materials.
1. THESE TERMS OF SERVICE.
- 1.1. What Is Governed By These Terms. These Terms set forth the terms and conditions governing your access to and use of the Platform, your Membership, and your access to, participation in, and use of or other dealing with, the Company’s services, Events, and the Company Materials (as defined below) (collectively, the “Services”).
- 1.2. Additional Terms. Your use of some components, portions or features of the Services may be subject to additional terms and conditions as specified by us from time to time. Such additional terms and conditions shall be deemed incorporated in their entirety into these Terms by reference. This includes any additional terms and conditions with regard to specific Membership benefits, features or limitations that may be described through the Platform. In the event of a conflict between any such additional terms and conditions, or other any agreement between you and the Company, and any provision in these Terms, such additional terms or other agreement shall govern, but only with respect to the portion of the Platform to which such additional terms or other agreement applies.
- 1.3. Using the Services on Behalf of a Legal Entity. In the event you are taking any action or engaging in any conduct governed by these Terms at the direction of or on behalf of a legal entity (including using any of the Services through any sort of account created by and/or for such legal entity), “you” will refer to both you as the individual engaging in that action or action and the particular legal entity you are acting at the direction of or on behalf of.
- 1.5. Right to Become a Member or to Use the Services.
- 1.5.1. Unless the Company agrees otherwise in writing, you shall apply for and be a Member of a specific Community only, not for all Communities. Membership criteria may vary by Community.
- 1.5.2. The Company only approves the Membership applications of those individuals meeting our specific criteria (which may vary by Community) and you acknowledge and agree that you may only become a Member if the Company, in its sole discretion, approves of your Membership application. In addition, we may, in our sole discretion, refuse to offer Membership or access or use of the Services to any Person and we may likewise change our eligibility criteria for Membership (whether for all Members or for Members of a specific Community) at any time.
- 1.5.3. If you are under age 18, you may not, under any circumstances or for any reason, become a Member or use any part of the Services, whether for your own use or on behalf of a legal entity.
- 1.5.4. You are solely responsible for ensuring that your Membership, your accessing or use of the Services, and these Terms are in compliance with all Applicable Laws. Your right to be a Member or to access or use any part of the Services shall be automatically and without notice from us revoked where these Terms, your Membership or use of any part of the Services is prohibited by any law, rule, regulation or order of a court or other Governmental Authority applicable to you. Further, unless you and the Company expressly agree otherwise in writing, your Membership and the Services are made available only for your use and benefit and not for the use or benefit of any other party.
- 1.5.5. FOR THE AVOIDANCE OF DOUBT, THE COMPANY RETAINS THE RIGHT IN ITS SOLE DISCRETION TO DENY USE OR ACCESS TO ANYONE TO ALL OR ANY PART OF THE SERVICES AT ANY TIME AND FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, FOR VIOLATION OF THESE TERMS.
2. AUTHORIZATION; RESTRICTIONS ON USE.
- 2.1. Authorization to Use the Services, the Company Materials, and the Platform. The Company hereby provides you with a limited, non-transferable, non-sublicensable royalty-free authorization to access and use the Services, including accessing and using the Platform and the Company Materials, provided that any such access and/or use is in complete compliance with these Terms.
- 2.2. Intellectual Property Rights. You understand, acknowledge, and agree that any and all Intellectual Property (including all Intellectual Property Rights therein) and other proprietary elements of the Services, including the Platform and all Company Materials, are and shall remain the sole and exclusive property of the Company and its licensors, or other providers of such services and materials, and are protected by United States and international copyright, trademark, patent, trade secret, and other Intellectual Property-related and other proprietary rights-related Applicable Laws. All rights not expressly granted to you herein are reserved to the Company and its licensors and other providers.
- 2.3. Services Are For Personal Use Only; Restrictions on Use. Unless the Company expressly states otherwise in writing, you may only use the Services for your personal, non-commercial use only. You shall not access or use, and shall use all commercially reasonable efforts to prevent any other Person from accessing, using or otherwise dealing with, the Services or any part thereof (including the Platform and any Company Materials) except as permitted by these Terms.
For purposes of clarity and without limiting the generality of the foregoing, you shall not, except as these Terms or as the Company otherwise expressly permits in writing:
- 2.3.1. access, use or otherwise deal with the Services or any part thereof (including the Platform and any Company Materials) except solely for your own non-commercial purposes;
- 2.3.2. copy, modify or create derivative works or improvements of the Services or any part thereof (including the Platform and any Company Materials);
- 2.3.3. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any part of the Services to any other 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;
- 2.3.4. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Platform in whole or in part;
- 2.3.5. bypass or breach any security device or protection used by the Platform or access or use the Services or any part thereof other than through the use of your valid user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services or part thereof.
- 2.3.6. knowingly input, upload, transmit or otherwise provide to or through the Platform any information or materials that are unlawful or injurious, or contain, transmit or activate any Viruses;
- 2.3.7. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services or any part thereof (including the Platform and any Company Materials) or the Company’s provision of the Services or any part thereof to any third party, in whole or in part;
- 2.3.8. remove, delete, alter or obscure any trademarks, Company Materials, specifications for the Platform, warranties or disclaimers, or any notices regarding any copyright, trademark, patent or other Intellectual Property Rights or other proprietary rights from the Platform or any Company Materials, including any copy thereof;
- 2.3.9. access or use the Services or any part thereof (including the Platform and any Company Materials) in any manner that infringes, misappropriates or otherwise violates any Intellectual Property Right or other rights of the Company or any third party, or that violates any Applicable Law; or,
- 2.3.10. access or use the Services or any part thereof (including the Platform and any Company Materials) for purposes of your or any other party’s development, provision or use of a competing software service, product or technology.
- 2.4 Responsibility for Users; Unauthorized Use. You are solely and fully responsible and liable for any and all activities done through or in connection with any login credentials or passwords associated with your Membership or other access or use of the Services, whether or not done by you or a third party, whether with your permission and/or knowledge or not. For the avoidance of doubt, this includes any and all use or other interactions with the Platform or any Company Materials by any Person acting at your direction or on your behalf in each case as if such Person was your own employee. You shall employ all necessary commercially reasonable administrative, physical, and technical safeguards, consistent with industry-accepted methods and standards, to prevent the unauthorized access, use, and disclosure of the Services, including the Platform and any Company Materials.
3 MEMBERSHIP; MEMBERSHIP FEES.
- 3.1. Services Are Only For Members. Except where the Company has expressly stated that a particular Service is available to non-Members, any use or access to the Services other than access to any part of the Platform or any Company Materials is limited to Members in good standing only.
- 3.2. Member of a Specific Community. Unless the Company agrees otherwise in writing, the benefits of your Membership shall be limited to those rights to access and use the Services that the Company provides to Members of the Community you are a Member of.
- 3.3. Your Membership Application and Other Information Related to your Membership.
- 3.3.1. You hereby represent, warrant, and covenant that any and all information that you have included in your Membership application or that you have otherwise previously or will in the future provide to the Company at any time was at the time of disclosure, and remains currently, true, correct, and without any material omission, and you covenant to update that information in the event that it is no longer entirely true, correct and complete. You can always update any information you have included in your Membership application or that you have otherwise provided to us by submitting a Member Director Update Form.
- 3.3.2. You acknowledge and agree that any login credentials and passwords associated with your Membership or you otherwise have in connection with any of the Services are for your use only. No other Person is permitted to use any of your login credentials or passwords to access or use any of the Services for any reason. You are responsible for maintaining the confidentiality of your personal Membership-related information and other Services-related information, including any login credentials and passwords associated with your Membership and or your access to and use of the Services.
- 3.4. Term of Membership; Cancelling Your Membership.
- 3.4.1. Your Membership, and your rights and obligations as a Member, shall continue until your Membership expires or is terminated by either yourself or the Company.
- 3.4.2. You may cancel your Membership at any time by emailing the Company at success@joinSalesSmyth.com with seven (7) days notice of your Membership renewal and agree to an exit interview. Unless you tell us otherwise, the cancellation will go into effect as soon as it is processed. If you cancel your Membership, we will not make any further automatic charges to your Payment Card (defined below). For the avoidance of doubt, the Company does not offer any refunds or credits if your Membership is canceled for any reason.
- 3.5. Membership Fees and Billing.
- 3.5.1. A Member’s Membership fee (“Membership Fee”) shall initially be the amount that was communicated to that Member during the Company’s process for approving her or his Membership. THE COMPANY RESERVES THE RIGHT TO MODIFY YOUR MEMBERSHIP FEE (BY RAISING, LOWERING, OR OTHERWISE MODIFYING YOUR MEMBERSHIP FEE) AS IT SEES FIT IN ITS SOLE DISCRETION AND AT ANY TIME by directly notifying you or by announcing a modification of Membership Fees through the Platform. No other notice to you is required for any such modification.
- 3.5.2. The Membership Fee for your Membership will be automatically billed to the specific credit card, debit card or other payment card you have provided for this purpose (your “Payment Card”). BY SUBMITTING AN APPLICATION FOR MEMBERSHIP AND PROVIDING YOUR BILLING INFORMATION, YOU AUTHORIZE THE COMPANY TO AUTOMATICALLY RENEW YOUR MEMBERSHIP AND AUTOMATICALLY CHARGE YOUR PAYMENT CARD THE APPLICABLE MEMBERSHIP FEE ON AN ANNUAL OR MONTHLY BASIS UNTIL YOU CANCEL. Your Payment Card will continue to be automatically charged the applicable Membership Fees unless and until your Membership has ended in accordance with Section 3.4.
- 3.5.3. If you choose the monthly Membership payment plan, your monthly Membership Fee will be automatically charged to your Payment Card on the day of checkout to officially start your Membership. Your Payment Card will then be automatically charged on each subsequent monthly anniversary of that first automatic charge date as long as you are still a Member at such time.
- 3.5.4. If you choose the annual Membership payment plan, your annual Membership Fee will be automatically charged to your Payment Card on the day of checkout to officially start your Membership. Your Payment Card will then be automatically charged on each subsequent annual anniversary of that first automatic charge date as long as you are still a Member at such time.
- 3.5.5. No refund of billed Membership Fees will be provided even if your Membership is terminated in the middle, rather than at the end, of a calendar month (if you have a monthly payment plan) or during the middle of a Membership year (if you have an annual payment plan). This rule applies regardless of whether your Membership was terminated by you or by the Company or why it was terminated.
- 3.5.6. IF YOU RECEIVED A PROMOTIONAL MEMBERSHIP FEE OR FREE TRIAL, COMPANY WILL AUTOMATICALLY RENEW YOUR MEMBERSHIP AND CHARGE YOUR PAYMENT CARD AT THE STANDARD (I.E., NON-PROMOTIONAL) MEMBERSHIP FEE UPON EXPIRATION OF THE PROMOTIONAL OR FREE TRIAL PERIOD.
- 3.6. Billing Information; Payment Processor.
- 3.6.1. In order to pay for your Membership Fees, you will be required to supply your Payment Card number and expiration date, your billing address, and other relevant billing information (“Billing Information”). You agree to provide accurate and up-to-date Billing Information at such time and to keep your Billing Information accurate and up-to-date in the event there are any changes.
- 3.7. Free Trials. The Company, in its sole discretion, may offer you an opportunity to access or use some or all of the Services – for instance, to attend an Event — free of charge for a limited period of time (a “Free Trial”). For the avoidance of doubt, if you accept such an invitation for a Free Trial, you will be deemed to have accepted all these Terms save those related to any billing or payment matters.
- 3.8. Taxes. All Membership Fees and other amounts payable by you hereunder are exclusive of all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, any credit card, debit card or payment-related fees, or similar assessments, charges or fees. You shall be solely responsible for all such amounts other than taxes imposed on the Company’s income, profits or net worth.
- 3.9. Failure To Timely Pay Membership Fees. If you fail to pay your Membership Fees in full when due then, in addition to all other remedies that may be available to the Company:
- 3.9.1. The Company may charge interest on the past due amount at the rate of 2.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under Applicable Law; and
- 3.9.2. The Company may without notice suspend your right and/or ability to access and/or use any or all of the Services until all past due amounts and interest thereon have been paid. The Company shall have no obligation or liability to you or any other Person by reason of any such suspension.
- 3.10. Collections. You acknowledge you shall be solely responsible and will pay on demand all costs of collection, including all reasonable attorneys’ fees, incurred by the Company in enforcing any of your payment obligations hereunder.
- 3.11. Changes to Memberships. The Company reserves the right to modify or discontinue any type of Membership, any required Membership Fees, benefits, features and limitations at any time, at its sole discretion, by notifying a Member directly about any such modification or discontinuance or by announcing such modification or discontinuance through the Platform (each, a “Membership Change”). If you have already paid for a Membership when a Membership Change affecting your Membership Fees is made, any change in Membership Fees will go into effect for you at the next renewal of your Membership (provided that we may impose such a Membership Change sooner upon written notice to you in extraordinary circumstances). All other Membership Changes shall be effective upon notification to you in accordance this Section. IF YOU DO NOT AGREE TO ANY MEMBERSHIP CHANGE, YOUR SOLE REMEDY IS TO CANCEL YOUR MEMBERSHIP AND TO IMMEDIATELY DISCONTINUE ANY ACCESS TO OR USE OF ANY OF THE SERVICES.
4. CODE OF CONDUCT; EVENTS; INTERACTIVE FEATURES; MEMBER CONTRIBUTIONS.
- 4.1. Code of Conduct. You agree that your involvement in all Events, all other aspects of the Company’s Communities, and all Member Contributions (defined below) that you may make shall comply with the Company’s Code of Conduct.
- 4.2. Interactive Features. The Services may include message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, interactive instant messaging channels or groups, interactive real-time audio and/or video conversation platforms, and other interactive features that allow Members to post, submit, publish, display, or transmit to other Members or other Persons (hereinafter, “post”) content or materials on or through the Platform. For the avoidance of doubt, any such interactive features shall be deemed part of the Platform.
- 4.3. Events; Additional Terms and Conditions For Events. The Services may include Events of different sorts, varying in duration, tone, expected level of participation or otherwise. You hereby acknowledge and agree to each of the following terms and conditions as lawful consideration for being permitted by the Company to participate in such Event:
- 4.3.1. YOU ARE AWARE AND UNDERSTAND THAT AN EVENT MAY INCLUDE ACTIVITIES THAT ARE DANGEROUS AND THAT INVOLVE THE RISK OF SERIOUS INJURY AND/OR DEATH AND/OR PROPERTY DAMAGE. IF THAT IS THE CASE, YOU FURTHER ACKNOWLEDGE THAT ANY INJURIES THAT YOU MAY SUSTAIN MAY BE COMPOUNDED BY NEGLIGENT EMERGENCY RESPONSE BY THE COMPANY OR OTHERS. PROVIDED THAT THE COMPANY HAS INFORMED YOU AS TO THE NATURE OF ANY SUCH DANGEROUS ACTIVITIES, YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY PARTICIPATING IN ANY SUCH ACTIVITIES WITH KNOWLEDGE OF THE DANGER INVOLVED AND HEREBY AGREE TO ACCEPT AND ASSUME ANY AND ALL RISKS OF INJURY, DEATH, OR PROPERTY DAMAGE, WHETHER CAUSED BY THE COMPANY’S NEGLIGENCE OR OTHERWISE.
- 4.3.2. In addition to any other waiver and release of Claims that may be included in these Terms, you hereby expressly waive and release any and all Claims, now known or hereafter known, against the Company, its Personnel, and its and their successors, and assigns (collectively, “Event Releasees”) arising out of or attributable to the activities taking place at or in connection with an Event, whether arising out of the negligence of the Company, any other Event Releasee or otherwise. You covenant not to make or bring any such Claim against the Company or any other Event Releasee and forever release and discharge the Company and all other Event Releasees from liability under such Claims.
- 4.3.3. You hereby acknowledge and agree that your attendance at and participation in any Event may be recorded by one or more methods and in any audio, video, digital or other formats (an “Event Recording”), by, on behalf of or at the direction of the Company, and you hereby irrevocably grant and license to the Company and its affiliates, successors, licensees, agents, and assigns (“Authorized Persons“) the rights to digitize, modify, alter, edit, adapt, create derivative works, display, publicly perform, exhibit, transmit, broadcast, reproduce, exploit, sell, rent, license, otherwise use, and permit others to use, an Event Recording, including your name, image, likeness, appearance, and voice as they appear in an Event Recording, in perpetuity throughout the universe and in any medium or format whatsoever now existing or hereafter created, including internet streaming and downloading, websites, other digital transmission or delivery methods, mobile applications, television broadcast, cablecast, and satellite, home video, video on demand, radio, and print publications, on any platform, including televisions, computers, and mobile devices, without further consent from or any royalty, payment, or other compensation to yourself except as these Terms may expressly provide otherwise.
- 4.3.4. Further, you hereby irrevocably permit, authorize, and license the Company and the Authorized Persons to identify yourself by name and use your name, likeness, appearance, voice, professional and personal biographical information, signature, other personal characteristics, and private information, and all Company Materials created by or on behalf of the Company that incorporate any of the foregoing, in connection with any use of an Event Recording by, on behalf of or at the direction of the Company in perpetuity throughout the universe and in any medium or format whatsoever now existing or hereafter created without further consent from or any royalty, payment, or other compensation to you.
- 4.3.5. You agree that the Company is and will be the sole and exclusive owner of all right, title, and interest in and to an Event Recording and anything made from or that incorporates any part of an Event Recording (whether such constitute Company Materials or not), including all copyrights and other Intellectual Property Rights therein, in perpetuity throughout the universe. In furtherance of the foregoing, you agree that the results and proceeds of your participation in connection with an Event Recording are works made for hire for the Company as defined in Section 101 of the Copyright Act of 1976. To the extent an Event Recording or any part thereof does not qualify as, or otherwise fails to be, work made for hire, you shall, and hereby do, (a) assign, transfer, and otherwise convey to the Company, irrevocably and in perpetuity, throughout the universe, all of your right, title, and interest, if any, in and to such Event Recording, including all copyright and other Intellectual Property Rights, all registration, renewal, and reversion rights, and the right to register and sue to enforce such copyrights against infringers; and (b) irrevocably waive any and all Claims you may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral in such Event Recording.
- 4.3.6. The Company has no obligation to use an Event Recording in any way. You acknowledge and agree that you have no right to review or approve an Event Recording, any part thereof, or any use of or incorporation of an Event Recording or part thereof in any other materials before such is used in any way by the Company or any third party or at any other time, and that the Company has no liability to you for any editing or alteration of an Event Recording or for any distortion or other effects resulting from the Company’s or a third party’s editing, alteration, or use of an Event Recording or the presentation of yourself. Acknowledgment or credit of you in connection with an Event Recording, if any, shall be determined by the Company in its sole discretion.
- 4.3.7. To the fullest extent permitted by Applicable Law, you (a) hereby irrevocably waive all legal and equitable rights relating to any and all Claims arising directly or indirectly from the Authorized Persons’ exercise of their rights under these Terms or the production, exhibition, advertising, promotion, exploitation, or other use of an Event Recording, and whether or not resulting in whole or in part from the negligence of the Company or any other Person, (b) covenant not to make or bring any such Claim against any Authorized Persons and their agents, employees, and representatives, and (c) forever release and discharge the Authorized Persons from liability under such Claims.
- 4.3.8. You further represent and warrant to the Company that your participation in any Event and in any Event Recording, and the Authorized Persons’ use of such Event Recording and the rights and license granted hereunder, do not, and will not, violate any right (including any Intellectual Property Right, right to privacy or right of publicity) of, or conflict with, or violate any contract or agreement with or commitment made to, any Person, and that no consent or authorization from, or any payment to, any third party is required.
- 4.4. Definition of “Member Contribution.” “Member Contribution” means anything that you express or do (or omit to express or do) in connection with any Community or otherwise connection with any other Member or other Person accessing or using any of the Services. Your “Membership Contributions” also include your actions (i.e. anything you say or do) at any Event or any content or materials you post, upload to or link to through the Platform.
- 4.5.1. You own or control all rights in and to all your Member Contributions and have the right to grant the license set forth above to us, our licensees, and our service providers or other vendors, and each of our and their respective licensees, successors, and assigns;
- 4.5.2. All of your Member Contributions do and will comply with these Terms (including the Code of Conduct); and,
- 4.5.3. You understand and acknowledge that you are responsible for all your Member Contributions, and you, not the Company, have full responsibility for any such Member Contribution, including its legality, reliability, accuracy, and appropriateness.
- 4.6. Enforcement of Terms Regarding Member Contributions. SalesSmyth has the right to:
- 4.6.1. Remove from or refuse to post to the Platform any Member Contributions for any or no reason in our sole discretion;
- 4.6.2. Take any action with respect to any Member Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such Member Contribution violates the Terms, including the Code of Conduct, infringes any Intellectual Property Rights or other rights of any Person, threatens the personal safety of another Member, user of the Services or other Person, or could create any liability for the Company; and,
- 4.6.3. Disclose your identity or other information about you to any third party who claims that any Member Contribution made or posted by you violates their rights, including their Intellectual Property Rights or their right to privacy.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone making or posting any Member Contribution. YOU WAIVE AND HOLD HARMLESS THE COMPANY, ITS PERSONNEL, LICENSEES, SERVICE PROVIDERS AND OTHER VENDORS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY ANY SUCH PARTY, ANY LAW ENFORCEMENT AGENCY OR OTHER GOVERNMENTAL AUTHORITY.
- 4.7. No Prior Review of Member Contributions; No Liability. The Company does not undertake to review Member Contributions before they are made (whether at an Event or posted on or through any part of the Platform) and cannot ensure prompt removal of any objectionable Member Contribution after it has been made or posted. Accordingly, we assume no liability for any action or inaction regarding any Member Contributions, any violation of the Code of Conduct, or any other transmissions, communications, or content provided by any Member, other user or any third party. We have no liability or responsibility to anyone for the performance or nonperformance of the activities described in this Section by you or any by other Member.
- 4.8. Copyright Infringement. If you believe that any Member Contribution violates your copyright, please see our Copyright Policy for instructions on sending us a notice of copyright infringement. It is the policy of the Company to terminate the Memberships and other rights to access and use the Services of repeat infringers.
- 4.9. No Reliance on Information and Materials Shared with You.
- 4.9.1. You acknowledge and agree that, except where the Company expressly states otherwise, any information or materials, including any Company Materials, any Member Contributions made or posted by any other Members or any content provided by another third party, that is presented or shared with you on or through the Services, or otherwise in connection with any Company activities is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of any such information or materials. Any reliance you place on such information or materials is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such information or materials by you, any other Member or any other Person using or accessing any part of the Services, or by anyone who may be informed of any of their contents.
- 4.9.2. In addition to the Member Contributions, the Services may include content provided by other third parties, including materials provided by other users, bloggers, journalists, subject-area experts, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and opinions expressed in any such materials, and all Member Contributions, other articles and responses to questions and other content, other than content or responses authored by or at the direction of the Company itself, are solely the opinions and the responsibility of the Person providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible or liable to you or any third party for the content or accuracy of any materials provided by any third parties.
- 4.10. Linking to the Platform. You may link to our homepage provided you do so in a way that is fair and legal and does not damage our 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 our part without our express written consent.
5. THIRD-PARTY PLATFORMS AND SERVICES.
- 5.1.1. The Company may use certain third-party websites, services or other resources on the Internet to help provide certain Services (for example, a third-party service that allows for online video conversations between Members). In other instances, the Company may provide links to third-party websites, services or other resources including our partners and social media networks. Collectively, these third-party websites, services, and other resources are referred to in these Terms as “External Platforms”.
- 5.1.2. Any link to any External Platform or any arrangements between the Company and an External Platform to help make certain Services available to you are provided solely as a convenience to you and not as an endorsement by the Company of any content on such External Platform that is not solely provided by or at the direction of the Company. We are not responsible for the content of any linked External Platforms and do not make any representations regarding the content or accuracy of any materials on such External Platforms except those that are solely provided by or at the direction of the Company. You should take precautions when downloading files from or otherwise accessing an External Platform to protect your computer and other digital devices from Viruses. If you decide to access any External Platform, including in connection with accessing or using any Services, you do so at your own risk. You acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, technology, goods, products or services available on or through any External Platforms, whether or not that use or reliance is related to your accessing or using any Services.
- 5.1.3. In the event that you use any External Platform to access or use any of the Services, you agree to follow all terms, conditions, and notices applicable to accessing or using such External Platform. If you are not willing to accept all of an External Platform’s terms and conditions, you are not permitted to use that External Platform to access or use any of the Services.
6. MAINTENANCE AND AVAILABILITY OF THE SERVICES. The Company may take offline or otherwise make unavailable the Services (including any part of the Platform or any Company Materials) or any portion thereof because of any scheduled or emergency maintenance, events of force majeure, malicious attacks on the Platform, issues associated with your computing devices, local area networks or internet service provider connections, internal organizational matters or for any other reasons.
7. MODIFICATIONS TO THE SERVICES. The Company reserves the right to add, remove, amend, modify and/or update any part of the Services, including the Platform and the Company Materials, or any component, feature or selection thereof at any time as it sees fit in its sole discretion. The Company also reserves the right to charge a separate or additional fee or charge for any part of the Services that was previously provided free of any additional charge at any time.
9. FEEDBACK. You may, from time to time and in its sole discretion, make suggestions for changes, modifications or improvements to the Company regarding all or part of the Services or any other matter or subject related thereto (“Feedback”). All Feedback shall be owned solely by the Company (including all Intellectual Property Rights therein and thereto) and, if provided in a private or confidential setting or context, shall also be the Company’s Confidential Information. You shall and hereby do make all assignments necessary for the Company to achieve such ownership.
10. YOUR OBLIGATIONS WITH REGARDS TO THE PLATFORM. You shall be solely responsible for (a) obtaining and maintaining all computer hardware, software, and communications equipment you need to access the Platform including any Interactive Features and any Company Materials provided on or through the Platform, (b) paying all third-party access, usage or service charges or fees incurred while accessing the Platform, and (c) implementing, maintaining, and updating all necessary and proper procedures and software for safeguarding against Viruses. You shall (i) abide by all Applicable Laws in connection with these Terms and the Platform, (ii) use the Platform or any portion thereof only for those legal purposes permitted herein, and (iii) comply with all regulations, policies, and procedures of any networks and telecommunications providers involved in accessing or using the Platform.
11. CONFIDENTIALITY. “Confidential Information” includes any private or confidential information about the Company, the Services or any part thereof, the Company’s past, present or future business, operations, products, services, partners, Personnel, vendors, customers or technology, and any agreement, arrangement or understanding that the Company and you are both parties to. To the extent that you receive or otherwise obtain any Confidential Information, you shall hold that Confidential Information in confidence, not share or transfer it to any other Person, and use it only as expressly permitted by the Company. For the avoidance of doubt, any information that the Company shares generally with, or with a large group of, its Members shall be deemed not to be Confidential Information. At any time the Company so requests, or automatically and immediately in the event that your Membership and/or any other rights you may have to access or use the Services are terminated, you shall return (if tangible copies) or permanently delete or destroy (if digital or otherwise intangible copies) all copies of any Confidential Information you possess or otherwise have control of.
12. REPRESENTATIONS AND WARRANTIES. You represent and warrant that the following is accurate and true as of the date on which you apply for a Membership or, if you have not applied for Membership, the date on which you first use or access any of the Services, and you covenant that the following will remain accurate and true during the entire time you, or others at your direction or on your behalf, access or use any of the Services: (a) you are a natural Person with legal capacity over 18 years of age or you are legal entity properly incorporated, formed or organized (as the case may be) and existing under the laws of the jurisdictions of its incorporation, formation or organization; (b) you have the authority and capacity to enter into the agreement constituted by these Terms; (c) these Terms constitute a legal, valid, and binding obligation, enforceable against you according to its terms; (e) you are not under any restriction or obligation that it would be reasonable to conclude may affect your performance of your obligations under these Terms; and (f) your entry into the agreement constituted by these Terms and your performance of your obligations under these Terms will not breach or result in a default under (i) if you are a legal entity, your charter, articles, bylaws, limited liability company agreement or any other governing document or agreement to which you are subject, (ii) any Applicable Law to which you are subject, or (iii) any agreement to which you are a party or by which you are bound.
13. TERMINATION AND EXPIRATION.
- 13.1.1. The Company may, in our sole discretion, change, suspend or terminate all or any part of your Membership, your right to use or access all or any part of the Services (including all or any portion of the Platform or the Company Materials), at any time and without prior notice or liability, if you breach these Terms or if the Company is unable to continue to offer all or any part of the Services. In the event you cancel your Membership or it is otherwise terminated, regardless of reason, you shall immediately and completely cease any and all accessing or use of the Services.
- 13.1.2. Notwithstanding the termination, for any or no reason, of your Membership, the agreement formed between the Parties by these Terms, and/or any other rights you may have to access or use the Services, you acknowledge and agree that Sections 1-11 and 1-18, as well as any other terms that by their nature are intended to survive the termination of your Membership, the agreement formed between the Parties by these Terms and/or any other rights you may have to access or use the Services, shall survive such termination.
14. INDEMNIFICATION. You shall indemnify, defend and hold harmless the Company and its Personnel (each such Person, an “Indemnitee”) from and against any and all Claims arising from, related to or otherwise occurring in connection with any actual or alleged (a) violation of these Terms by you, (b) a violation, infringement or misappropriation of any third party’s Intellectual Property Rights, proprietary rights, privacy or personality rights or other rights by you, or (c) gross negligence or willful misconduct by you. For the avoidance of doubt, the remedies set forth in this Section are in addition to, not instead of, any other remedies available to an Indemnitee pursuant to these Terms or otherwise available to an Indemnitee under Applicable Law. The Company reserves the right to assume the exclusive defense and control (at your sole expense) of any matter that is subject to indemnification under this Section. In such case, you agree to cooperate (at your sole expense) with any reasonable requests assisting our defense of such matter.
15. DISCLAIMERS; LIMITATIONS OF LIABILITY.
- 15.1. Disclaimer of Warranties. THE COMPANY AND ITS PERSONNEL MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ERROR-FREE FUNCTIONING, VIRUS-FREE STATUS OR ACCURACY OF THE SERVICES, INCLUDING ANY EVENT, THE PLATFORM, THE COMPANY MATERIALS, OR ANY COMPONENT, FEATURE OR PORTION THEREOF OR ANY INFORMATION OR DATA MADE AVAILABLE FROM ANY OF THEM FOR ANY PURPOSE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, ANY PORTION THEREOF, AND ANY INFORMATION, DATA OR MATERIALS (INCLUDING BUT NOT LIMITED TO THE COMPANY MATERIALS) MADE AVAILABLE FROM, ON OR THROUGH THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OR CONDITION OF ANY KIND. THE COMPANY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SERVICES, INCLUDING ALL EVENTS, THE PLATFORM, AND THE COMPANY MATERIALS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TO THE EXTENT THAT THE COMPANY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
- 15.2. Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY OR ANY OF ITS PERSONNEL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, ARISING FROM YOUR ACCESS TO OR USE OF THE SERVICES OR ANY PART THEREOF, INCLUDING DAMAGES FOR LOST PROFITS, LOST DATA, COMPUTER FAILURE, OR THE VIOLATION OF YOUR RIGHTS BY ANY THIRD PARTY, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. IN THE EVENT THAT THE COMPANY OR ANY OF ITS PERSONNEL ARE DETERMINED TO HAVE ANY LIABILITY HEREUNDER, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF THE COMPANY OR ITS PERSONNEL WILL BE LIMITED TO THE LESSER OF TEN THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNT YOU HAVE ACTUALLY PAID TO THE COMPANY (FOR EXAMPLE, YOUR MEMBERSHIP FEES) IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, THE COMPANY WOULD NOT PROVIDE YOU WITH A MEMBERSHIP OR MAKE AVAILABLE ANY OF THE SERVICES TO YOU.
- 15.3. Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH JURISDICTIONS, THE LIABILITY OF THE COMPANY AND ITS PERSONNEL SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW AND NOTHING IN THESE TERMS SHALL AFFECT ANY LEGAL RIGHTS AND REMEDIES YOU HAVE UNDER ANY LOCAL LAW.
16. AMENDMENTS AND UPDATES. These Terms may be amended, modified, updated or terminated at any time by the Company, provided that the Company notifies you in advance of any material amendment, modification or update by posting an amended version of the Terms through the Platform (and the date of such posting shall be deemed the date of notification) or by notifying you of such change(s) in accordance with the notification provision included in these Terms. Any such amendment, modification or update shall go into effect on the tenth (10th) business day following the date of such notification (a “Terms Amendment Date”). Any use or accessing of the Services or any part thereof on or following the applicable Terms Amendment Date, except solely to the extent that may be required by you to terminate your Membership, shall be deemed to constitute your acceptance of such amendment, modification or update to these Terms.
- 17.1. Entire Agreement and Severability. Unless you and the Company expressly agree otherwise in writing, these Terms constitute the entire agreement between you and the Company with respect to the subject matter hereof and any transactions contemplated herein and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and the Company with respect to the same. If any provision of these Terms is found to be unenforceable or invalid by a court or arbitrator, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.
- 17.2. Amendment and Modification; Waiver. Unless done pursuant to Section 16, no amendment or update to, modification of or rescission, termination or discharge of these Terms is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of your agreement with the Company constituted by these Terms, and is signed by an authorized representative of each Party. No waiver by a Party of any of these Terms shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- 17.3. Assignment. Neither your Membership, any other rights you have to access or use any of the Services, your agreement with the Company as constituted by these Terms or any of your obligations hereunder may be assigned, sublicensed or delegated, in whole or in part, by you without the Company’s prior written consent. The Company may assign, sublicense, transfer or delegate any of its rights and obligations herein without your consent. These Terms are binding upon and will inure to the benefit of both Parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. Any purported assignment, delegation or transfer in violation of this Section is null and void.
- 17.4. Relationship of the Parties. The relationship of the Parties is that of an independent contractor, and no agency, partnership, joint venture, or employment is created as a result of these Terms, and neither Party has any authority of any kind to bind the other Party in any respect.
- 17.5. Third-party Beneficiaries. The Parties agree that any Event Releasee and any Authorized Party shall be a third-party beneficiary of Section 4.3 and any Indemnitee shall be a third-party beneficiary of Section 14. Otherwise, these Terms are for the sole benefit of the Parties 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 these Terms.
- 17.6. Governing Law. These Terms, the rights, authorizations, and licenses granted hereunder or any of the transactions contemplated herein, any access or use of any of the Services by you or for which you shall be responsible for as stated herein 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 that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado.
- 17.7. ARBITRATION CLAUSE & CLASS ACTION WAIVER.
- 17.7.1. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND THE COMPANY (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH THE COMPANY, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS, THE RIGHTS, AUTHORIZATIONS, AND LICENSES GRANTED HEREUNDER OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, ANY ACCESS OR USE OF THE SERVICES, INCLUDING THE PLATFORM, ANY EVENTS, AND THE COMPANY MATERIALS, BY YOU OR FOR WHICH YOU SHALL BE RESPONSIBLE AS STATED HEREIN, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND THE COMPANY HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT TO THE EXTENT THAT YOU HAVE IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE THE COMPANY’S INTELLECTUAL PROPERTY RIGHTS, THE COMPANY MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF COLORADO. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND THE COMPANY WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
- 17.7.2. As an alternative, you may bring your Claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring Claims only on your own behalf. Neither you nor the Company will participate in a class action or class-wide arbitration for any Claims covered by this agreement to arbitrate.
- 17.7.3. YOU AGREE THAT YOU ARE HEREBY GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST THE COMPANY INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in Claims brought in a private attorney general or representative capacity, or consolidated Claims involving another Person’s Membership, the Services (including their access to or use of the Services or any part thereof) or any other matter related to the Company if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of Applicable Law notwithstanding, the arbitrator will not have the authority to award damages, remedies or awards that conflict with these Terms. You agree that regardless of any Applicable Law to the contrary, any Claim arising out of, related to or connected with your Membership or your access to or use of the Services or any component thereof (including any matters related to your Membership Fees) or these Terms must be filed within one (1) year after such Claim arose or be forever banned.
- 17.7.4. If the prohibition against class actions and other Claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Section 17.7 will be null and void. This agreement to arbitration will survive the termination of your relationship with us.
- 17.8. Equitable Relief. You acknowledge and agree that a breach or threatened breach by you of the terms and conditions set forth in Sections 2.3 or 11 might cause the Company irreparable harm for which monetary damages might not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the Company will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available to the Company at law, in equity or otherwise.
- 17.9. Headings; Construction. Any section, subsection, and paragraph headings in these Terms are for convenience only and shall not affect their interpretation.
- 17.10. Notices.
- 17.10.1. When you use the Platform or send communications to us through the Platform, you are communicating with us electronically. You consent to receive electronically any notices or other communications related to these Terms, any agreement between the Parties or the Services. The Company may communicate with you by email or by posting notices on the Platform. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing. All notices from the Company intended for receipt by you shall be deemed delivered and effective when sent to the email address you provide to us.
- 17.10.2. Any day-to-day communications from you to the Company regarding your Membership and/or your access to or use of the Services may be sent to success@joinSalesSmyth.com. Any other communications or notices, including any notice that the Company has breached these Terms, must be sent by personal delivery, nationally recognized courier or certified or registered mail (in each case, return receipt requested, postage prepaid) to SalesSmyth, 5525 N. Union Blvd – Ste 200, Colorado Springs, CO 80918. Except as otherwise provided in these Terms, any communication or notice is effective only (a) on receipt by the receiving Party, and (b) only if the Party giving providing such communication or notice has complied with the requirements of this Section.
- 17.11. Force Majeure. The Company shall not be liable under these Terms for performance delays or for non-performance due to causes beyond its reasonable control.
- 17.12. Contacting the Company. Subject to Section 17.10, you may contact the Company about any matter by emailing us at hello@SalesSmyth.com or by mail at the SalesSmyth, 5525 N. Union Blvd – Ste 200, Colorado Springs, CO 80918, attn.: Member Support.
- 17.13. IMPORTANT NOTE TO NEW JERSEY CONSUMERS. If you are accessing or using any of the Services in your capacity as a consumer residing in State of New Jersey, the following provisions of these Terms do not apply to you (and do not limit any rights that you may have) to the extent that they are unenforceable under New Jersey law: (a) the disclaimer of liability for any indirect, incidental, punitive, special, exemplary, or consequential damages of any kind (for example, to the extent unenforceable under the New Jersey Punitive Damages Act, New Jersey Products Liability Act, New Jersey Uniform Commercial Code, and New Jersey Consumer Fraud Act); (b) the limitation on liability for lost profits or loss or misuse of data (for example, to the extent unenforceable under the New Jersey Identity Theft Protection Act and New Jersey Consumer Fraud Act); (c) application of the limitations of liability to the recovery of damages that arise under contract and tort, including negligence, strict liability, or any other theory (for example, to the extent such damages are recoverable by a consumer under New Jersey law, including the New Jersey Products Liability Act); (d) the requirement that you indemnify the Company (for example, to the extent the scope of such indemnity is prohibited under New Jersey law); and (e) the governing law provision (for example, to the extent that your rights as a consumer residing in New Jersey are required to be governed by New Jersey law).
18. ADDITIONAL DEFINITIONS; INTERPRETATION.
- 18.1. Additional Definitions. In addition to those capitalized terms defined elsewhere in these Terms, the terms below have the following meanings:
“Applicable Law” means any law (including common law), statute, regulation, ordinance, rule, guideline, directive, requirement, order, decree, judgment, consent decree, writ, injunction, settlement agreement or governmental requirement enacted, promulgated or imposed or entered into or agreed by any federal, state, provincial, local or foreign government, or any subdivision, agency, department, board, commission, instrumentality or authority of any thereof, including any court.
“Claim” means any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, including claims for copyright or trademark infringement, infringement of moral rights, libel, defamation, invasion of any rights of privacy, violation of rights of publicity, physical or emotional injury or distress, or any similar claim or cause of action in tort, contract, or any other legal theory, now known or hereafter known in any jurisdiction throughout the world.
“Company Materials” means any content, data or information of any kind (audio, video, digital, oral, written or otherwise) manuals, instructions or other documents or materials that the Company provides or makes available to you in any form or medium in connection with the Services or that is otherwise related to the Company, its business, Personnel or Members. For the avoidance of doubt, “Company Materials” shall also include anything which describes the functionality, components, features or requirements of the Platform, including any aspect of the installation, configuration, integration, operation, use, support or maintenance of any component thereof.
“Event” means an event of any kind operated on and/or at the direction of the Company or which the Company has otherwise indicated shall be an event that Members can attend as a benefit of their Memberships. Events can be in-person, online, by telephone, videoconference, or otherwise or can be any combination of such means, methods, and formats.
“Governmental Authority” means any federal, state, local, or foreign (a) any federal, state, local, or foreign government, and any political subdivision of any of them, (b) agency or instrumentality of any such government or political subdivision, (c) self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that its rules, regulations or orders have the force of law), or (d) arbitrator, court or tribunal of competent jurisdiction.
“Intellectual Property” means any and all of the following in any jurisdiction throughout the world: (a) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing, (b) copyrights, including all applications and registrations related to the foregoing, (c) trade secrets and confidential know-how, (d) patents and patent applications, (e) websites and internet domain name registrations, and (f) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys’ fees for past, present, and future infringement, and any other rights relating to any of the foregoing).
“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 Intellectual Property including 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.
“Party” means either you or the Company, and, together, you and the Company may be referred to the “Parties”.
“Person” means (a) any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and (b) any individual.
“Personnel” means, in connection with a Party, the employees, officers, directors, managers, managing members, agents, subcontractors, vendors, equity holders, legal and financial representatives of such Party.
“Platform” means, collectively, the Company’s websites located at www.salessmyth.com and each other Company website, mobile site, service, application, online platform or tool, any third-party platform, service or tool that the Company uses to provide any functionality to its Members or other users of the Services, any other part of the Company’s information technology infrastructure, including computers, software, hardware, architecture, and related systems, databases, electronic systems (including database management systems) and networks (and including code related thereto), if any, whether operated directly by the Company or through the use of third-party services, as well as any new versions, updates, revisions, improvements and modifications of any part of the Platform.
“Viruses” means any computer infections, viruses, worms, Trojan horses, and other code that manifest contaminating or destructive properties or that otherwise prevents the Company, any of its Personnel, anyone acting on the Company’s direction, any Member or any other user of any of the Services to access or use all or any part of the Services.
- 18.2. Interpretation. When a reference is made in these Terms to a Section, such reference shall be to a Section of these Terms unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in these Terms, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in these Terms shall refer to these Terms as a whole and not to any particular provision of these Terms. The definitions contained in these Terms are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.
These Terms and any action related thereto will be governed by the laws of the State of Colorado without regard to or application of its conflict of law provisions or your state or country of residence. Unless submitted to arbitration as set forth in the following paragraph, all claims, legal proceedings in Colorado Springs, El Paso County, Colorado, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
For any claim (excluding claims for injunctive or other equitable relief) under this Agreement where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding, non-appearance-based arbitration. The party electing such arbitration shall initiate the arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, as selected by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
This Agreement is the entire and exclusive agreement between SalesSmyth and you regarding the Service (excluding any services for which you have a separate agreement with SalesSmyth that is explicitly in addition or in place of this Agreement), and this Agreement supersedes and replaces any prior agreements between SalesSmyth and you regarding the Service. The failure of SalesSmyth to enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
SalesSmyth may provide notices to you via email, written or hard copy notice, or posting on the Platform, as determined by SalesSmyth in our sole discretion. SalesSmyth reserves the right to determine the form and means of providing notice to you, provided that you may opt out of certain means of notice as described in this Agreement.
This Agreement was last modified on January 1, 2023.