APEX SmartConfirm ™

Smart Confirm Terms of Service

Each person or entity (“you” or “your”) accessing or using any mobile application (including, but not limited to, the SmartConfirm application, website, desktop application, plugin or other media platform) that references or links to these Terms of Use (collectively, the “Site”), you hereby accept and agree to comply with the terms and conditions set forth in the following user agreement (this “Agreement”), and you (including, without limitation, each individual using the site on your behalf) shall be considered a “User”. This User Agreement is entered into by and between you and Smart Confirm LLC (“Company”), and governs your access and use of the Site, your use of any proprietary platform or other technology provided on or through the Site, and any other products or services available on and via the Site from time to time. By signifying your acceptance of this Agreement or by accessing or using the Site or allowing others to access or use the Site on your behalf or through the use of your usernames and passwords (“Access Methods”), and you agree to be bound by this Agreement (which may be updated from time to time, as discussed below). Without limiting the foregoing, you may not insist upon any avoidance of this Agreement once you access or use the Site. To the extent any other agreement between you and Company conflicts with the terms of this Agreement, this Agreement shall govern.

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SITE. YOUR USE OF THE SITE INDICATES YOUR FULL ACCEPTANCE OF AND AGREEMENT TO ABIDE BY THIS AGREEMENT IN ITS THEN-CURRENT FORM. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS STATED HEREIN, DO NOT USE THE SITE.

General Provisions
1. Company hereby grants you a fully revocable, nontransferable, nonexclusive right to use the Site solely for your own personal or internal business purposes only. The foregoing right has been granted to you subject to your agreement to abide by this Agreement as well as any other rules, procedures, policies, terms or conditions governing the Site that may be displayed from time to time on the Site or otherwise provided to you by Company and to which Users will be bound. You must be authorized by Company to access and use the Site. If you are using the Site on behalf of any other person or entity (each, a “Person”), (i) you must be duly authorized by such Person to act on their behalf and have the requisite power and authority to act on behalf of and legally bind such other Person; (ii) if such Person subsequently disputes such power or authority, you hereby agree to provide or execute and deliver such other documents and/or take such other actions required on your part to prove that you have (or had, at all relevant times) such requisite power and authority; and (iii) if such Person disputes such power or authority, you shall be liable and shall indemnify Company and the other Covered Persons (hereinafter defined) for such dispute and/or for any failure of such Person to comply with this Agreement. In the event any of your affiliates use the Site, you shall ensure that such affiliate complies with each and every of your obligations hereunder and shall be responsible for such compliance.
2. You further represent, warrant, and covenant to Company that: (i) you are authorized to enter into this Agreement and otherwise perform your obligations hereunder; (ii) you are authorized to conduct business in all jurisdictions where you operate and from which you will use the Site, and are otherwise legally permitted and fully authorized to use the Site as contemplated hereby under the Applicable Law (hereinafter defined) of all jurisdictions in which you do business; (iii) all use of the Site by or through you, or with your Access Methods, will be in accordance with this Agreement; and (iv) you will notify Company immediately upon becoming aware of any violation of this Agreement.
3. The information accessible on and via the Site (the “Content”) is the property of Company and/or third parties, is not the property of any User, and is protected by copyright and other intellectual property and proprietary rights. Without limiting the foregoing or expanding any of your rights hereunder, you agree that you will not publish, broadcast, retransmit, reproduce, commercially exploit, create any derivative of or otherwise disseminate or disclose to any person such Content. You are prohibited from violating or attempting to violate the security of the Site or interfering in any manner with any security-related feature of the Site or any system resources, services or networks connected to or accessible through the Site. The material contained on the Site is believed to be accurate at the time it was posted, but is provided to Users as-is, where-is, and with all faults, without any express or implied warranty as to availability, reliability, merchantability, non-infringement, accuracy, completeness, timeliness, fitness for a particular purpose or otherwise.
4. You shall not, directly or indirectly, during the term of this Agreement or thereafter, engage in or permit any other person or entity to engage in any of the following actions: (i) decompile, disassemble, modify, translate, or reverse engineer the Site or any Content or otherwise attempt to obtain the source code for the Site; (ii) sell, license, sublicense, rent, lease, timeshare, assign, pledge, or otherwise encumber the Site or permit any other Person to use the Site; (iii) use any name, trade mark, service mark, logo(s), or other intellectual property of Company without Company’s prior written consent in each instance; (iv) use the Site or any data or information provided therein for any purpose other than as expressly permitted hereby; (v) develop or assist in the development of any website, platform, software, or technology competitive with or similar to the Site (including, without limitation, including any similar ideas, features, functions or graphics); or (vi) modify, alter, tamper with, translate, repair or create derivative works based on or using the Site or any Content.
Access and Security.
1. Users may not access the Site unless each such User has received Access Methods from and is authorized by Company. In order to receive Access Methods Company may require you to submit certain personal information, such as your name, address, job title, mobile phone number and age, as well as a valid payment method supported by the Site. You agree to maintain accurate, complete, and up-to-date information associated with your Access Methods. Your failure to maintain accurate, complete, and up-to-date information, including having an invalid or expired payment method on file, may result in your inability to access or use the Site. You hereby agree not to disclose your Access Methods to any other Person (including, without limitation, any User other than the individual User for which such Access Methods were issued). You will be solely responsible for ensuring the security and confidentiality of the Access Methods, and will be responsible for all activity on the Site occurring through or in connection with your Access Methods, including, without limitation, all acts or omissions of Persons using the Site through your Access Methods. You are solely responsible for ensuring that your Access Methods are known to and used by only the authorized User assigned to such Access Methods. You agree to notify Company immediately of any actual or suspected loss, theft or unauthorized use of your Access Methods or any other breach of security relating to the Site. Upon receipt of such notice, Company will terminate your Access Methods provided that you will remain responsible for any actions taken through the use of your Access Methods before they are terminated. In certain instances you may be asked to provide proof of identity or other method of identity verification to access or use the Site, and you agree that you may be denied access to or use of the Site if you refuse to provide proof of identity or other method of identity verification. In Company’s sole discretion, Company may terminate, revoke, suspend, modify, or change any or all of your Access Methods at any time with or without prior notice.
2. You hereby release Company from any and all liability concerning any activity taken on the Site using your Access Methods. Company has no obligation to inquire as to the authority or propriety of any use of or action taken under your Access Methods and will not be responsible for any loss to you arising from any such use or action. Company will take reasonable security precautions when using the Internet, telephone or other means to transport data or other communications, but expressly disclaims any and all liability for the accessing of any such data or communications by unauthorized persons or entities.
3. You are responsible for obtaining the data network access necessary to use the Site. Your mobile network's data and messaging rates and fees may apply if you access or use the Site from a mobile device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Site and any updates thereto. Company does not guarantee that the Site, or any portion thereof, will function on any particular hardware or devices.
4. The Site may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications. Company cannot guarantee the continuous and uninterrupted availability and accessibility of the Site. Company may restrict the availability of the Site or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of its servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Site. Company may improve, enhance and modify the Site and remove, modify, or add features and functionality thereon from time to time in its sole discretion.
5. If you are using the Site as agent for customers or any other principal (for example, actin as a fund manager or broker), you hereby represent and warrant that as of each time you place an order or confirm a transaction using the Site: (a) you are authorized by your customers or any other relevant principal to effect and confirm transactions using the site in accordance with this Agreement; (b) you are complying with all Applicable Law and investment guidelines; and (c) there are, to the best of your knowledge and belief, adequate customer assets and assets of the principal to meet the obligation created by such order or transaction. You shall indemnify Company and all other Covered Persons on demand against any liabilities, costs, claims, losses, expenses (including but not limited to legal fees) and damages arising out of or relating to the actual or alleged breach of any of the foregoing representations and warranties.
Disclosure and Use of Information.
1. You agree that Company may contact you by email, telephone, text message, or other method (including by an automatic telephone dialing system) at any of the contact information provided by you or on your behalf in connection with your Access Methods, including for marketing purposes. You understand that you are not required to provide this consent as a condition of engaging in any transaction or other property, goods or services, and you may have the right to opt out of such contacts to the extent permitted by Applicable Law.
2. Company has the right, but not the obligation, to monitor any activity and content associated with the Site. Company may, but shall not be obligated to, review, monitor, or remove Content, at Company’s sole discretion and at any time and for any reason, without notice to you. Company may, without limitation, investigate any complaint or reported violation of its policies and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspending or terminating your use of all or any portion of the Site and denying you access to all or any portion of the Site. Company also reserves the right to report any activity that it suspects may violate any Applicable Law to appropriate law enforcement officials, regulators, or other persons or entities. In order to cooperate with governmental requests, to protect Company's systems and Users, to ensure the integrity and operation of the Site, business or systems, to comply with the requirements of third parties, or otherwise to comply with Applicable Law, Company may access and disclose any information, including information regarding a User, it considers necessary or appropriate.
Ownership.
1. The Site, its Content and any and all intellectual property rights pertaining thereto (including but not limited to copyrights, patents, trademarks and service marks) are owned by Company or third parties, and all right, title and interest therein and thereto shall remain the property of Company and/or its licensors, successors or other third parties and shall not be considered the property of any User. You agree not to remove any copyright, trademark or other proprietary notice or legend contained on the Site or its content (or printed copies thereof). Company and other names and indicia of Company's products and/or services referenced herein are exclusive trademarks and service marks of Company. Other product and company names, trademarks and service marks appearing in the Site are the intellectual property of their respective owners.
2. If you choose to transmit or submit through the Site any message, documents, information and/or data, including but not limited to ideas, suggestions, questions, feedback, orders, trades, and/or proposals contained in such message, documents, information and/or data, by and immediately upon such transmission or submission you will be deemed to irrevocably grant to Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license (with unlimited right to sublicense) to make, have made, use, offer for sale, sell, import, reproduce, distribute, perform, display, and make derivative works based upon such messages, documents, information, orders, trades, and data (and all ideas, suggestions, feedback and proposals contained therein). Company shall have no obligation of any kind with respect to such messages, documents, information, orders, trades, and/or data and shall be free to use, disclose and/or distribute any such order, trade, message, documents, information and/or data to others without limitation and to reproduce and use any ideas, concepts, know-how or techniques contained or embodied therein, including without limitation to develop, manufacture, market and produce products and services incorporating such ideas, concepts, know-how or techniques.
3. Each time you disclose or provide any Content to Company (including, without limitation, by uploading or providing any Content to or through the Site), you shall be deemed to represent and warrant the following with respect to such disclosure: (i) such disclosure does not include confidential information; (ii) if such disclosure includes proprietary information, such proprietary information is owned solely by you or is duly licensed to you, which license permits such disclosure and the use thereof by Company as contemplated by this Agreement; (iii) such disclosure, and the use thereof by Company as contemplated hereby, does not and will not breach the terms of any agreement, duty, or obligation to which you or such Content is subject; and (iv) neither the Content so provided, nor your submission, uploading, publishing or otherwise making available of such Content, nor Company’s use of such Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any Applicable Law
4. You acknowledge and agree that, as between Company and you, to the fullest extent permitted by Applicable Law, all right, title and interest in and to the Site, all Content, and all modifications and enhancements thereof or thereto, including, without limitation, all rights under copyright and patent and other intellectual property rights, belong to and are retained solely by Company or Company’s licensors and providers, as applicable. Company reserves all rights not expressly granted under this Agreement. You are authorized to access and use the Site and related Content only for your own personal or internal business purposes as contemplated by this Agreement, provided that you continue to, at all times, comply in full with this Agreement.
Termination. Company reserves the right to reject your registration or suspend or terminate your access to and use of all or any portion of the Site at any time and for any reason, in its sole discretion. In the event your use of the Site is suspended or terminated, this Agreement will continue to apply to your past use of the Site in the form in which it then existed at the time of the subject use. Termination of your access to and use of the Site shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability that you otherwise may have to Company. Without limiting the foregoing, this Section 5 (Termination), together with Sections 1 (General Provisions), 2 (Access and Security), 3 (Disclosure and Use of Information), 4 (Ownership), 6 (No Advice, Offers or Solicitations; No Recommendations of Individual Securities), 7 (Performance), 8 (Limits), 9 (Service Terms), 11 (Fees), 12 (Indemnity), 13 (Records), 15 (Privacy), 17 (Third Party Content), 18 (Confidentiality), 19 (Disclaimer of Warranties, 20 (Limitation of Liability), 21 (Arbitration; Applicable Laws), 25 (Notice to Company), 26 (No Waiver of Rights), 27 (Enforceability), and 28 (Headings) shall survive termination of this Agreement for any reason.
No Advice, Offers or Solicitations; No Recommendations of Individual Securities. You acknowledge that the information contained on the Site is not and should not be construed as legal, tax, accounting or investment advice (including any advice concerning the suitability or profitability of any security or investment). You acknowledge that the information contained on the Site is not and should not be construed as an offer or solicitation of any kind to buy or sell any securities or other financial instruments. You acknowledge that the information contained on the Site is not and should not be construed as advice or recommendations regarding individual securities including advice or recommendations concerning the suitability of, and investment strategies for, individual securities. Research, analysis, data, news, and other information made available electronically do not constitute individualized recommendations to buy, sell or otherwise invest in a particular security. You acknowledge and agree that you have made your own independent decision to access and use the Site based upon your own judgment. No communication (written or oral) received from Company will be deemed to be an assurance or guarantee as to the use of the Site or expected results of an individual security, financial instrument or investment strategy.
Performance. Past performance is no indication of future performance, and nothing on the Site should be interpreted to state or imply otherwise. There can be no assurances that investors will have returns on invested capital similar to the returns presented because of, among other reasons, differences in economic conditions, regulatory climate, portfolio size, leverage, expenses and structure, as well as investment policies and techniques.
Limits. You acknowledge that Company, in its sole and absolute discretion, has the right to set limits, parameters and controls (collectively, “Limits”) over the Site and its use, including in respect of your or any User’s access to and use thereof. Such Limits may be amended, increased, decreased, changed, removed or added from time to time by Company at its absolute discretion with or without notice. Limits may be applied automatically or manually by Company without notice to you, but where any Limits are notified to you, you shall comply with all such Limits. Company is under no obligation to ensure that you or any User complies with any applicable Limits. Limits may be specific to particular Content, Users, or portions of the Site (and Company is under no obligation to ensure consistency of Limits across the Site) or may be generic including overall credit or exposure limits and/or any Limits which Company may be required to implement under any Applicable Law.
Service Terms. You are solely responsible for all purchases and sales of financial instruments effected through the Site (“Transactions”). Company shall not be a party to any Transaction, and is under no duty of inquiry regarding the capacity of any User to enter into any Transaction or the authority of any person using Access Methods. Each User represents and warrants to Company that it has the capacity to enter into each Transaction and each person using Access Methods shall have the authority to bind the User to whom such Access Methods were issued in respect of each Transaction. You represent and warrant that you and each User are fully aware of, and will comply at all times with, all applicable terms and conditions, disclaimers and/or rules of any relevant exchange or trading venue (“Exchange Terms and Conditions”). It is your responsibility to check the Exchange Terms and Conditions periodically to ensure you and your Users are aware of, and compliant with, the latest Exchange Terms and Conditions, including but not limited to those concerning market integrity, suspensions and halts and reversals to transactions. Notwithstanding any other provision of this Agreement, you represent and warrant that you and your Users are fully aware of, and understand fully, the market and the financial instruments being traded on each applicable exchange or trading venue via the Site, and any Applicable Laws affecting or relating to their trading operations, including (without limitation) those relating to market abuse, insider dealing and criminal offences. You acknowledge that, where required by Applicable Law or requested by a regulatory authority, or any exchange or trading venue, Company may provide all relevant information concerning orders transmitted and/or executed via the Site. You agree to co-operate fully and promptly with all requests for the provision of any other information in your possession, custody or control which Company may be required or requested to so provide. Company shall not be responsible for the successful delivery, accuracy or timeliness of any notification delivered via the Site or for any action taken by you in respect of any notification or failure to receive a notification through the Site. You acknowledge that certain forms of notification offered via the Site may not be a secure means of delivery and you agree that Company shall not be liable for any losses which may arise as a result of or in connection with the transmission of any information or documentation via non secure notifications, howsoever arising. Company is not obligated to provide notifications through or via the Site and may cease to do so, or change the format or content of notifications, at any time without notice. To the extent that, due to any loss of signal, loss of connectivity, interference or platform breakdown or other similar technical issue (whether temporary or permanent) as determined by Company in its sole discretion (a “Connectivity Event”) there is an interference or delay between the order being submitted to such order being received, you shall bear the sole risk associated with any such Connectivity Event. You acknowledges and agrees that where any such order has been delayed or not received, you may not be able to enter into a similar order on the basis of the same pricing and terms as was available prior to the Connectivity Event occurring.
Training. You will ensure that all Users accessing the Site for you or on your behalf have been given suitable training in the use of the Site. Company is, however, under no obligation to provide Users with training or assistance in relation to the use of the Site.
Fees. Company may charge certain fees for use of the Site (the “Fees”). The amount and nature of the Fees will be posted on the Site from time to time, and may be changed from time to time by Company by posting such updated Fees on the Site. The current Fee schedule can be found here: Fee Schedule. Users are liable for all Fees arising out of their use of the Site. Users must have a payment method on file when using the Site, and must pay all Fees and other amounts owed, including taxes, by the date due. If your payment method fails, or your account is past due, Company may collect amounts owed by charging other payment methods on file with it, and retain collection agencies and legal counsel in connection therewith. In addition, Company may charge late fees with respect to amounts past due, up to the maximum amount permitted by Applicable Law. Company may, in its sole discretion and without consent from, or payment, Fee reduction, or other credit to, Users, display third-party advertisements (including links and references thereto) or other Content in any part of the Site. Fees paid hereunder are final and non-refundable. As between you and Company, Company reserves the right to establish, remove and/or revise Fees for any use of the Site at any time in Company’s sole discretion. You will be responsible for Fees incurred under your account regardless of your awareness of such Fees or the amounts thereof. Company may from time to time provide certain Users with promotional offers and discounts that may result in different amounts charged for the same or similar use of the Site, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Site or the Fees applied to you. Company may use the Fees (and all proceeds therefrom) for any lawful purpose.
Indemnity. You will indemnify, defend, and hold harmless Company and all other Covered Persons against and from any and all actions, causes of action, claims, demands, costs, liabilities, expenses (including reasonable attorneys’ fees and court costs), and damages based on, arising out of or relating to: (i) use of the Site by you or with your Access Methods; (ii) your breach of this Agreement (including, without limitation, any Third Party Terms (hereinafter defined) or any representation, warranty or covenant made by you herein); (iii) your violation or alleged violation of any Applicable Law or any third party's rights; (iv) your infringement of any right to any Third Party IP (hereinafter defined) or allegations thereof; (v) your misuse of or reliance on any Content; (vi) any Content developed, provided, or otherwise related to your use of the Site; or (vii) negligence, willful misconduct, fraud, defamation, libel, violation of privacy rights, unfair competition, or allegations thereof to the extent caused by you or on your behalf.
Records. You will maintain such records, reports, information, agreements, and other documents as Company or any Third Party Content Provider may require from time to time to confirm compliance with this Agreement. Without limiting the foregoing, during the term of this Agreement and for seven (7) years thereafter, Company and each Third Party Content Provider (hereinafter defined) may, upon request (i) examine, copy, and extract information from your books, records, reports, information, agreements, and other documents relating to the Site; (ii) enter your premises or any other premises from which you or any User accesses the Site, examine any component of equipment and software used in connection with the Site or any Third Party Content (hereinafter defined), and observe any use of the Site or the Third Party Content; and (iii) take such actions as may be appropriate to otherwise verify compliance with this Agreement.
Notices; Modifications.
1. From time to time, Company may post legal notices to the Site. You shall not remove these notices, or any additional information contained along with any such notice. The Site may contain references to trademarks, copyrighted materials, technologies, products, data, processes and software and other proprietary rights of Company, Third Party Content Providers or other Persons. Except as necessary for your access to and use of the Site as contemplated by this Agreement, no license to or right in any such trademarks, copyrighted materials, technologies, products, data, processes, software or other proprietary rights of Company or any Third Party Content Provider is granted to or conferred upon you.
2. Company may modify the terms of this Agreement or any of the policies or guidelines governing the Site, at any time and in its sole discretion (including, without limitation, as required by any Third Party Content Provider), by posting the modified Agreement on the Site. Company will not be required to provide notice of any such modification directly to you. The modifications shall be effective upon such posting (unless some other date is specified in the posting, in which case that date shall be deemed the effective date for the modifications). You agree to review this Agreement periodically so that you are aware of any modifications. Your use of the Site indicates your full acceptance of this Agreement in its then-current form each time you use the Site. You agree that the notice and modification provisions provided in this Agreement are reasonable. You may not modify the terms of this Agreement or any of the policies or guidelines governing the Site without Company's express prior written consent.
3. Company reserves the right, in its sole discretion, to make unscheduled deployments of updates, enhancements or such other changes to the Site at any time that Company deems necessary or otherwise desirable, in each case to the full extent permitted by Applicable Law and without notice or liability to you.
Privacy. For the purposes of providing and maintaining the Site and for general administrative purposes with regard to this Agreement and the Site, Company and the Third Party Content Providers shall have access to certain information, including without limitation names, functions, business units and contact details which constitute “personal data”, “personal information” or any other similar term as defined in Applicable Law, or information or materials, in any form, that alone or in combination with other information or materials: (i) uniquely identifies any individual (e.g., names, addresses, telephone numbers, account information, financial information, etc.); or (ii) is considered “sensitive personal data” such as political opinions, ethnicity, religious beliefs, or health information (all such information, “Personal Data”) of your employees, temporary and casual workers, officers, directors, representatives, consultants, agents, independent contractors, and other personnel including, but not limited to, Users (“Personnel”). Company and each Third Party Content Provider has the right to use, disclose, and transfer the Personal Data in accordance with the provisions of this Agreement. Without limitation, the Personal Data will be stored and processed globally in by and on behalf of Company and the Third Party Content Providers, including in contact databases and finance systems and to third party affiliates, service providers, and agents of Company and such Third Party Content providers, and including transfers to countries outside of the applicable Personnel’s home country whose data protection standards are different than those of the origin country. Company shall implement commercially reasonable physical, technical and organizational measures to protect the Personal Data against accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of Personal Data over a network, and against all forms of unlawful processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation. It is your sole responsibility to ensure at its own cost that the collection of Personal Data and the making available of Personal Data to Company and Third Party Content Providers for the above purposes (including, without limitation any transfer thereof) complies with any Applicable Laws including without limitation any employment, labor, data protection and privacy laws. Without limiting the generality of the foregoing, you shall where and as legally required by Applicable Law inform the Personnel on, and obtain their explicit consent to, the processing (including transfer) of such Personal Data by Company for purposes of this Agreement, and your (and each User’s) acceptance of this Agreement shall constitute your (and each User’s) representation and warranty that all such consents have been granted. Without limiting the foregoing, information that Company gathers from Users via their use of the Site is governed by Company’s privacy policy: Privacy Policy.
Site Rules. You agree that while using the Site you will comply with the following rules (in addition to the other rules set forth elsewhere on the Site or in this Agreement):
1. You will not violate any Applicable Law in connection with your access to or use of the Site.
2. Your use of the Site and Content as permitted hereunder shall be solely for your own personal or internal business use in accordance with, and subject to the terms of, this Agreement.
3. You agree that the Site is only intended for manual use, and you will not access the Site through the use of any “bots” or other software applications that may be used to perform automated tasks or scripts, including accessing or in any way using the Site. You will not “scrape” the Site or otherwise use any data mining, robots, or similar data gathering or extraction methods in connection with the Site, and you will not use the Site in automatic, semi-automatic or manual tools designed to create virus signatures, virus detection routines, or any other data or code for detecting malicious code or data.
4. You will not (i) link to, mirror or frame any portion of the Site; or (ii) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Site or unduly burdening or hindering the operation and/or functionality of any aspect of the Site.
5. You will not submit or transmit to, through or in connection with the Site: (i) any unlawful, inaccurate, misleading, harassing, libelous, privacy invading, abusive, threatening, defamatory, vulgar, racist, or otherwise harmful or objectionable Content of any kind (including, but not limited to, any Content that depicts nudity, sexual conduct or violence); (ii) any Content that infringes upon any third party right (including, but not limited to, any copyright, trademark, right of publicity or privacy, or any other intellectual property or similar rights, as well as rights associated with any recognizable name, voice, person, or image (collectively “Third Party IP”)); (iii) any advertisements or other promotional materials or information for purposes of advertising or promoting any products or services, unsolicited commercial messages, spam, bulk communications, chain letters, or pyramid schemes; (iv) any virus, Trojan horse, worm, time bomb, trap door, disabling code, malware, or other computer programming device the purpose of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, otherwise harm, misdirect or impede in any manner any computer, software, hardware, firmware, system, or network; (v) any political or promotional opinions, in each case, for the purpose of promoting those opinions; (vi) any Content which may constitute or encourage conduct that is fraudulent, a criminal offense or civil wrong or otherwise violates any Applicable Law; or (vii) any Content which contains any disabling mechanism or protection feature designed to prevent its use by Company in the manner contemplated in this Agreement, or which would otherwise render inaccessible or impair the use thereof in any manner.
6. You will not dilute, tarnish or otherwise harm the Site or Company’s brand in any way, including through unauthorized use of Content, registering and/or using “SmartConfirm” or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Company’s domains, trademarks, taglines, promotional campaigns or Content.
7. In your use of the Site, you will not discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behavior.
8. While accessing or using the Site, you will not impersonate any Person, make any false statement regarding any Person (including but not limited to, any Person’s employment, agency or affiliation with any other Person), or create false identities for any reason.
9. You will not take any action that imposes (or may impose, as determined by Company in its sole discretion) an unreasonable or disproportionately large load on any servers or other infrastructure underlying the Site, and you will not use the Site in any way that causes (or is likely to cause, as determined by Company in its sole discretion) the Site or access to or use of it to be interrupted, interfered with, damaged or impaired in any way, including but not limited to any use of the Site that in any way interferes with or disrupts Company’s ability to provide the Site or any User’s ability to access the Site.
10. You will not (i) use the Site for timesharing or service bureau purposes or otherwise for the benefit of a third party; (ii) sell, lend, rent, resell, lease, sublicense or otherwise transfer to any third party or commercialize the Site (or any part thereof or Content therein) or any of the rights granted to you by Company in connection therewith; (iii) access or use the Site in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas; or (iv) download or copy any Content from the Site for your own benefit or for the benefit of another Person.
11. You will not use, modify, duplicate, print, transmit or distribute in any manner any Content or any other reports, research, materials, data or other information viewed, accessed or provided on the Site except as expressly permitted by this Agreement, solely for your personal or internal business use in accordance with, and subject to the terms of, this Agreement.
12. You will not attempt to gain access to the Site, other Users’ accounts, or any computer systems or networks connected to the Site through hacking, password mining or any other similar means.
13. You will not use any meta tags or any other “hidden text” utilizing any of Company’s names or trademarks without Company’s express written consent.
14. You will: (i) ensure that Content you submit through the Site (including the storage or transmission thereof) comply with this Agreement and any and all Applicable Laws; (ii) promptly handle and resolve any notices and claims relating to such information, including any notices sent to you by any Person claiming that any Content violates any Third Party IP rights and any other notices; and (iii) maintain appropriate security, protection and backup copies of such Content, which may include, your use of additional encryption technology to protect such Content from unauthorized access.
15. You represent and warrant that you have the full legal right, power and authority to provide Content provided in connection with your use of the Site and to grant the rights granted by you to Company with regard to such Content in this Agreement.
16. If after you submit any Content to Company, you receive any notice or otherwise learn in any way that any of the representations made by you in above were not accurate, complete and not misleading in all material respects or no longer are accurate, complete and not misleading in all material respects or of any claim by a third party to the effect of the foregoing, you will promptly provide Company with written notice all relevant facts regarding the same and if appropriate, remove the Content from the Site.
You further agree not to cause, encourage or permit any third party to do any of the foregoing on your behalf or in any way with your assistance or collaboration, including without limitation by providing other Persons with your Access Methods or by otherwise authorizing any third party to access or use the Site.
Third Party Content.
1. The Site may be made available or accessed in connection with third party services and content (including advertising, “Third Party Content”; the providers of such content, collectively, “Third Party Content Providers”) that Company does not control. You acknowledge that different terms of use and privacy policies (“Third Party Terms”) may apply to your use of such Third Party Content. Company does not endorse such third party services and content and in no event shall Company be responsible or liable for any products or services of such Third Party Content Providers. Additionally, each Third Party Content Provider will be a third-party beneficiary to this Agreement if you access the Site using applications developed for devices provided by such Third Party Content Providers. These third party beneficiaries are not parties to this Agreement and are not responsible for the provision or support of the Site in any manner. Your access to the Site is subject to all applicable Third Party Terms.
2. The Content may contain links to other websites that operate independently from Company and the Site. Linked websites may have their own agreements, terms of use, privacy statements, or notices. If you visit any linked websites we strongly suggest you review any such agreements, terms, statements, and notices. Whether or not such websites are linked to the Site, Company is not responsible for, and this Agreement is not applicable to, any websites that are not affiliated with or owned by Company (including, without limitation, any content, use, or practices of such websites). When making payments through the Site, you may be providing your information, including personal data to one or more third parties, who are solely responsible for processing any payments through the Site. Such payments are subject to any terms and agreements required by such third party payment processor(s), and Company is not responsible for such terms, processing such payments, or any act or omission of any such third party processor.
Disclaimer of Warranties. The Site is intended for personal and internal business purposes only. Company makes no warranty that the operation of the Site will be uninterrupted or error-free or as to the accuracy, completeness, suitability, or result obtained from the use of the Site or any Content. THE SITE AND ALL SERVICES AND INFORMATION AVAILABLE ON OR VIA THE SITE (INCLUDING, WITHOUT LIMITATION, ALL THIRD PARTY CONTENT) ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (i) ANY WARRANTIES CONCERNING THE AVAILABILITY, RELIABILITY, ACCURACY, COMPLETENESS, TIMELINESS OR SEQUENCING OF THE SITE OR THE INFORMATION, CONTENT, PRODUCTS OR SERVICES AVAILABLE ON OR VIA THE SITE; AND (ii) ANY WARRANTIES OF TITLE OR EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS. WITHOUT LIMITING THE FOREGOING, THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY ASSET, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, THE THIRD PARTY CONTENT PROVIDERS OR ANY OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, PARTNERS, MEMBERS, CONSULTANTS, ADVISORS, LICENSORS, OR EMPLOYEES (COLLECTIVELY, “COVERED PERSONS”) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SITE, THE USE OF OR INABILITY TO USE THE SITE OR ANY CONTENT, PRODUCTS, SERVICES OR INFORMATION PURCHASED, OBTAINED OR STORED IN OR FROM THE SITE, TRADE IDEAS PROVIDED PURSUANT TO THE SITE, OR TRANSACTIONS ENTERED INTO IN CONNECTION THEREWITH, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ANY COVERED PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL THE LIABILITY OF ANY COVERED PERSON IN ANY CIRCUMSTANCE EXCEED $100. WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH, THESE LIMITATIONS ALSO APPLY TO ANY THIRD PARTY CLAIMS AGAINST USERS.
Arbitration; Applicable Laws.
1. By agreeing to this Agreement, you agree that you are required to resolve any claim that you may have against Company on an individual basis in arbitration, as set forth in this Agreement. This will preclude you from bringing any class, collective, or representative action against Company, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Company by someone else.
2. YOU AND COMPANY MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after this Agreement terminates or your relationship with Company ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided herein, this Arbitration Agreement applies to all Claims (defined below) between you and any Covered Persons. All Covered Persons shall be considered intended third party beneficiaries of this Agreement.
3. Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN YOU AND ANY COVERED PERSON (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND THE APPLICABLE COVERED PERSON(S). These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Site, any Content made available through the Site, your relationship with any Covered Person, the threatened or actual suspension, deactivation or termination of your User account or this Agreement, payments made by you or any payments made or allegedly owed to you, any promotions or offers made or allegedly made by or on behalf of a Covered Person, any Applicable Law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided herein.
4. BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND COMPANY ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
5. YOU UNDERSTAND AND AGREE THAT YOU AND COMPANY MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND COMPANY BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SECTION SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST COMPANY, WHICH ARE ADDRESSED SEPARATELY HEREINBELOW. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules (hereinafter defined), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (a) the dispute is filed as a class, collective, or representative action and (b) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining claims and may be brought in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
6. Any arbitration pursuant to this Arbitration Agreement will take place exclusively in Chicago, Illinois. This Arbitration Agreement shall not require arbitration of actions brought in small claims court, or any action (including, without limitation, actions) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
7. This Agreement and all terms and conditions included or incorporated by reference herein shall be governed by and interpreted in accordance with the laws of the State of Illinois applicable to agreements made and wholly performed therein.
8. Company controls and operates the Site from its headquarters in the United States of America, and Company makes no claim that the Site may be lawfully used outside of the United States. Access to the Site or certain Content may not be legal by certain Persons or in certain countries. If you access the Site from outside of the United States, you do so at your own risk and you are responsible for compliance with the laws of your jurisdiction. You may not use, export, re-export, import or transfer the Site (or any portion thereof or any rights thereto granted by Company) except as authorized by the applicable laws of the United States, the laws of the jurisdiction in which you gained access to the Site, and any other applicable law, rule, regulation, administrative, judicial, or governmental order, or legal process (including, without limitation, any requirements of securities exchanges and self-regulatory organizations, collectively, “Applicable Law”). In particular, but without limitation, neither the Site nor any portion thereof or any rights thereto may be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By accessing and using the Site, you represent and warrant that you are not located in any such country or on any such list. Company reserves the right to limit, in its sole discretion, the availability of the Site to any Person, geographic area, or jurisdiction, at any time.
Entire Agreement. This Agreement (including the Privacy Policy), as modified from time to time, constitutes the entire agreement between you and Company with respect to the subject matter hereof. This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof.
Joint Venture. Nothing in this Agreement shall constitute or create a joint venture, partnership, or any other similar arrangement between you and Company. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement.
Assignment. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto. Company may assign this Agreement in whole or in part at any time without your consent. You may not assign this Agreement or delegate any of your obligations hereunder. Any purported assignment of this Agreement in violation of its terms shall be void.
Notice to Company. Any notice to Company that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by confirmed e-mail to legal@smartconfirmllc.com or when delivered in person or two (2) business days after mailed by first class, registered or certified mail, postage prepaid, to Company.
No Waiver of Rights. Failure of either party to enforce any of its rights under this Agreement will not act as a waiver of such rights.
Enforceability. If any portion of any provision of this Agreement is found invalid or unenforceable, that provision shall be enforced to the maximum extent possible and the remaining provisions of this Agreement shall remain in full force and effect.
Headings. Headings used in this Agreement are for convenience only. They do not constitute part of this Agreement.

Smart Confirm Terms of Service

General Provisions
1. Company hereby grants you a fully revocable, nontransferable, nonexclusive right to use the Site solely for your own personal or internal business purposes only. The foregoing right has been granted to you subject to your agreement to abide by this Agreement as well as any other rules, procedures, policies, terms or conditions governing the Site that may be displayed from time to time on the Site or otherwise provided to you by Company and to which Users will be bound. You must be authorized by Company to access and use the Site. If you are using the Site on behalf of any other person or entity (each, a “Person”), (i) you must be duly authorized by such Person to act on their behalf and have the requisite power and authority to act on behalf of and legally bind such other Person; (ii) if such Person subsequently disputes such power or authority, you hereby agree to provide or execute and deliver such other documents and/or take such other actions required on your part to prove that you have (or had, at all relevant times) such requisite power and authority; and (iii) if such Person disputes such power or authority, you shall be liable and shall indemnify Company and the other Covered Persons (hereinafter defined) for such dispute and/or for any failure of such Person to comply with this Agreement. In the event any of your affiliates use the Site, you shall ensure that such affiliate complies with each and every of your obligations hereunder and shall be responsible for such compliance.
2. You further represent, warrant, and covenant to Company that: (i) you are authorized to enter into this Agreement and otherwise perform your obligations hereunder; (ii) you are authorized to conduct business in all jurisdictions where you operate and from which you will use the Site, and are otherwise legally permitted and fully authorized to use the Site as contemplated hereby under the Applicable Law (hereinafter defined) of all jurisdictions in which you do business; (iii) all use of the Site by or through you, or with your Access Methods, will be in accordance with this Agreement; and (iv) you will notify Company immediately upon becoming aware of any violation of this Agreement.
3. The information accessible on and via the Site (the “Content”) is the property of Company and/or third parties, is not the property of any User, and is protected by copyright and other intellectual property and proprietary rights. Without limiting the foregoing or expanding any of your rights hereunder, you agree that you will not publish, broadcast, retransmit, reproduce, commercially exploit, create any derivative of or otherwise disseminate or disclose to any person such Content. You are prohibited from violating or attempting to violate the security of the Site or interfering in any manner with any security-related feature of the Site or any system resources, services or networks connected to or accessible through the Site. The material contained on the Site is believed to be accurate at the time it was posted, but is provided to Users as-is, where-is, and with all faults, without any express or implied warranty as to availability, reliability, merchantability, non-infringement, accuracy, completeness, timeliness, fitness for a particular purpose or otherwise.
4. You shall not, directly or indirectly, during the term of this Agreement or thereafter, engage in or permit any other person or entity to engage in any of the following actions: (i) decompile, disassemble, modify, translate, or reverse engineer the Site or any Content or otherwise attempt to obtain the source code for the Site; (ii) sell, license, sublicense, rent, lease, timeshare, assign, pledge, or otherwise encumber the Site or permit any other Person to use the Site; (iii) use any name, trade mark, service mark, logo(s), or other intellectual property of Company without Company’s prior written consent in each instance; (iv) use the Site or any data or information provided therein for any purpose other than as expressly permitted hereby; (v) develop or assist in the development of any website, platform, software, or technology competitive with or similar to the Site (including, without limitation, including any similar ideas, features, functions or graphics); or (vi) modify, alter, tamper with, translate, repair or create derivative works based on or using the Site or any Content.
Access and Security.
1. Users may not access the Site unless each such User has received Access Methods from and is authorized by Company. In order to receive Access Methods Company may require you to submit certain personal information, such as your name, address, job title, mobile phone number and age, as well as a valid payment method supported by the Site. You agree to maintain accurate, complete, and up-to-date information associated with your Access Methods. Your failure to maintain accurate, complete, and up-to-date information, including having an invalid or expired payment method on file, may result in your inability to access or use the Site. You hereby agree not to disclose your Access Methods to any other Person (including, without limitation, any User other than the individual User for which such Access Methods were issued). You will be solely responsible for ensuring the security and confidentiality of the Access Methods, and will be responsible for all activity on the Site occurring through or in connection with your Access Methods, including, without limitation, all acts or omissions of Persons using the Site through your Access Methods. You are solely responsible for ensuring that your Access Methods are known to and used by only the authorized User assigned to such Access Methods. You agree to notify Company immediately of any actual or suspected loss, theft or unauthorized use of your Access Methods or any other breach of security relating to the Site. Upon receipt of such notice, Company will terminate your Access Methods provided that you will remain responsible for any actions taken through the use of your Access Methods before they are terminated. In certain instances you may be asked to provide proof of identity or other method of identity verification to access or use the Site, and you agree that you may be denied access to or use of the Site if you refuse to provide proof of identity or other method of identity verification. In Company’s sole discretion, Company may terminate, revoke, suspend, modify, or change any or all of your Access Methods at any time with or without prior notice.
2. You hereby release Company from any and all liability concerning any activity taken on the Site using your Access Methods. Company has no obligation to inquire as to the authority or propriety of any use of or action taken under your Access Methods and will not be responsible for any loss to you arising from any such use or action. Company will take reasonable security precautions when using the Internet, telephone or other means to transport data or other communications, but expressly disclaims any and all liability for the accessing of any such data or communications by unauthorized persons or entities.
3. You are responsible for obtaining the data network access necessary to use the Site. Your mobile network's data and messaging rates and fees may apply if you access or use the Site from a mobile device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Site and any updates thereto. Company does not guarantee that the Site, or any portion thereof, will function on any particular hardware or devices.
4. The Site may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications. Company cannot guarantee the continuous and uninterrupted availability and accessibility of the Site. Company may restrict the availability of the Site or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of its servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Site. Company may improve, enhance and modify the Site and remove, modify, or add features and functionality thereon from time to time in its sole discretion.
5. If you are using the Site as agent for customers or any other principal (for example, actin as a fund manager or broker), you hereby represent and warrant that as of each time you place an order or confirm a transaction using the Site: (a) you are authorized by your customers or any other relevant principal to effect and confirm transactions using the site in accordance with this Agreement; (b) you are complying with all Applicable Law and investment guidelines; and (c) there are, to the best of your knowledge and belief, adequate customer assets and assets of the principal to meet the obligation created by such order or transaction. You shall indemnify Company and all other Covered Persons on demand against any liabilities, costs, claims, losses, expenses (including but not limited to legal fees) and damages arising out of or relating to the actual or alleged breach of any of the foregoing representations and warranties.
Disclosure and Use of Information.
1. You agree that Company may contact you by email, telephone, text message, or other method (including by an automatic telephone dialing system) at any of the contact information provided by you or on your behalf in connection with your Access Methods, including for marketing purposes. You understand that you are not required to provide this consent as a condition of engaging in any transaction or other property, goods or services, and you may have the right to opt out of such contacts to the extent permitted by Applicable Law.
2. Company has the right, but not the obligation, to monitor any activity and content associated with the Site. Company may, but shall not be obligated to, review, monitor, or remove Content, at Company’s sole discretion and at any time and for any reason, without notice to you. Company may, without limitation, investigate any complaint or reported violation of its policies and take any action that it deems appropriate. Such action may include, but is not limited to, issuing warnings, suspending or terminating your use of all or any portion of the Site and denying you access to all or any portion of the Site. Company also reserves the right to report any activity that it suspects may violate any Applicable Law to appropriate law enforcement officials, regulators, or other persons or entities. In order to cooperate with governmental requests, to protect Company's systems and Users, to ensure the integrity and operation of the Site, business or systems, to comply with the requirements of third parties, or otherwise to comply with Applicable Law, Company may access and disclose any information, including information regarding a User, it considers necessary or appropriate.
Ownership.
1. The Site, its Content and any and all intellectual property rights pertaining thereto (including but not limited to copyrights, patents, trademarks and service marks) are owned by Company or third parties, and all right, title and interest therein and thereto shall remain the property of Company and/or its licensors, successors or other third parties and shall not be considered the property of any User. You agree not to remove any copyright, trademark or other proprietary notice or legend contained on the Site or its content (or printed copies thereof). Company and other names and indicia of Company's products and/or services referenced herein are exclusive trademarks and service marks of Company. Other product and company names, trademarks and service marks appearing in the Site are the intellectual property of their respective owners.
2. If you choose to transmit or submit through the Site any message, documents, information and/or data, including but not limited to ideas, suggestions, questions, feedback, orders, trades, and/or proposals contained in such message, documents, information and/or data, by and immediately upon such transmission or submission you will be deemed to irrevocably grant to Company a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license (with unlimited right to sublicense) to make, have made, use, offer for sale, sell, import, reproduce, distribute, perform, display, and make derivative works based upon such messages, documents, information, orders, trades, and data (and all ideas, suggestions, feedback and proposals contained therein). Company shall have no obligation of any kind with respect to such messages, documents, information, orders, trades, and/or data and shall be free to use, disclose and/or distribute any such order, trade, message, documents, information and/or data to others without limitation and to reproduce and use any ideas, concepts, know-how or techniques contained or embodied therein, including without limitation to develop, manufacture, market and produce products and services incorporating such ideas, concepts, know-how or techniques.
3. Each time you disclose or provide any Content to Company (including, without limitation, by uploading or providing any Content to or through the Site), you shall be deemed to represent and warrant the following with respect to such disclosure: (i) such disclosure does not include confidential information; (ii) if such disclosure includes proprietary information, such proprietary information is owned solely by you or is duly licensed to you, which license permits such disclosure and the use thereof by Company as contemplated by this Agreement; (iii) such disclosure, and the use thereof by Company as contemplated hereby, does not and will not breach the terms of any agreement, duty, or obligation to which you or such Content is subject; and (iv) neither the Content so provided, nor your submission, uploading, publishing or otherwise making available of such Content, nor Company’s use of such Content as permitted herein will infringe, misappropriate or violate a third party's intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any Applicable Law
4. You acknowledge and agree that, as between Company and you, to the fullest extent permitted by Applicable Law, all right, title and interest in and to the Site, all Content, and all modifications and enhancements thereof or thereto, including, without limitation, all rights under copyright and patent and other intellectual property rights, belong to and are retained solely by Company or Company’s licensors and providers, as applicable. Company reserves all rights not expressly granted under this Agreement. You are authorized to access and use the Site and related Content only for your own personal or internal business purposes as contemplated by this Agreement, provided that you continue to, at all times, comply in full with this Agreement.
Termination. Company reserves the right to reject your registration or suspend or terminate your access to and use of all or any portion of the Site at any time and for any reason, in its sole discretion. In the event your use of the Site is suspended or terminated, this Agreement will continue to apply to your past use of the Site in the form in which it then existed at the time of the subject use. Termination of your access to and use of the Site shall not relieve you of any obligations arising or accruing prior to such termination or limit any liability that you otherwise may have to Company. Without limiting the foregoing, this Section 5 (Termination), together with Sections 1 (General Provisions), 2 (Access and Security), 3 (Disclosure and Use of Information), 4 (Ownership), 6 (No Advice, Offers or Solicitations; No Recommendations of Individual Securities), 7 (Performance), 8 (Limits), 9 (Service Terms), 11 (Fees), 12 (Indemnity), 13 (Records), 15 (Privacy), 17 (Third Party Content), 18 (Confidentiality), 19 (Disclaimer of Warranties, 20 (Limitation of Liability), 21 (Arbitration; Applicable Laws), 25 (Notice to Company), 26 (No Waiver of Rights), 27 (Enforceability), and 28 (Headings) shall survive termination of this Agreement for any reason.
No Advice, Offers or Solicitations; No Recommendations of Individual Securities. You acknowledge that the information contained on the Site is not and should not be construed as legal, tax, accounting or investment advice (including any advice concerning the suitability or profitability of any security or investment). You acknowledge that the information contained on the Site is not and should not be construed as an offer or solicitation of any kind to buy or sell any securities or other financial instruments. You acknowledge that the information contained on the Site is not and should not be construed as advice or recommendations regarding individual securities including advice or recommendations concerning the suitability of, and investment strategies for, individual securities. Research, analysis, data, news, and other information made available electronically do not constitute individualized recommendations to buy, sell or otherwise invest in a particular security. You acknowledge and agree that you have made your own independent decision to access and use the Site based upon your own judgment. No communication (written or oral) received from Company will be deemed to be an assurance or guarantee as to the use of the Site or expected results of an individual security, financial instrument or investment strategy.
Performance. Past performance is no indication of future performance, and nothing on the Site should be interpreted to state or imply otherwise. There can be no assurances that investors will have returns on invested capital similar to the returns presented because of, among other reasons, differences in economic conditions, regulatory climate, portfolio size, leverage, expenses and structure, as well as investment policies and techniques.
Limits. You acknowledge that Company, in its sole and absolute discretion, has the right to set limits, parameters and controls (collectively, “Limits”) over the Site and its use, including in respect of your or any User’s access to and use thereof. Such Limits may be amended, increased, decreased, changed, removed or added from time to time by Company at its absolute discretion with or without notice. Limits may be applied automatically or manually by Company without notice to you, but where any Limits are notified to you, you shall comply with all such Limits. Company is under no obligation to ensure that you or any User complies with any applicable Limits. Limits may be specific to particular Content, Users, or portions of the Site (and Company is under no obligation to ensure consistency of Limits across the Site) or may be generic including overall credit or exposure limits and/or any Limits which Company may be required to implement under any Applicable Law.
Service Terms. You are solely responsible for all purchases and sales of financial instruments effected through the Site (“Transactions”). Company shall not be a party to any Transaction, and is under no duty of inquiry regarding the capacity of any User to enter into any Transaction or the authority of any person using Access Methods. Each User represents and warrants to Company that it has the capacity to enter into each Transaction and each person using Access Methods shall have the authority to bind the User to whom such Access Methods were issued in respect of each Transaction. You represent and warrant that you and each User are fully aware of, and will comply at all times with, all applicable terms and conditions, disclaimers and/or rules of any relevant exchange or trading venue (“Exchange Terms and Conditions”). It is your responsibility to check the Exchange Terms and Conditions periodically to ensure you and your Users are aware of, and compliant with, the latest Exchange Terms and Conditions, including but not limited to those concerning market integrity, suspensions and halts and reversals to transactions. Notwithstanding any other provision of this Agreement, you represent and warrant that you and your Users are fully aware of, and understand fully, the market and the financial instruments being traded on each applicable exchange or trading venue via the Site, and any Applicable Laws affecting or relating to their trading operations, including (without limitation) those relating to market abuse, insider dealing and criminal offences. You acknowledge that, where required by Applicable Law or requested by a regulatory authority, or any exchange or trading venue, Company may provide all relevant information concerning orders transmitted and/or executed via the Site. You agree to co-operate fully and promptly with all requests for the provision of any other information in your possession, custody or control which Company may be required or requested to so provide. Company shall not be responsible for the successful delivery, accuracy or timeliness of any notification delivered via the Site or for any action taken by you in respect of any notification or failure to receive a notification through the Site. You acknowledge that certain forms of notification offered via the Site may not be a secure means of delivery and you agree that Company shall not be liable for any losses which may arise as a result of or in connection with the transmission of any information or documentation via non secure notifications, howsoever arising. Company is not obligated to provide notifications through or via the Site and may cease to do so, or change the format or content of notifications, at any time without notice. To the extent that, due to any loss of signal, loss of connectivity, interference or platform breakdown or other similar technical issue (whether temporary or permanent) as determined by Company in its sole discretion (a “Connectivity Event”) there is an interference or delay between the order being submitted to such order being received, you shall bear the sole risk associated with any such Connectivity Event. You acknowledges and agrees that where any such order has been delayed or not received, you may not be able to enter into a similar order on the basis of the same pricing and terms as was available prior to the Connectivity Event occurring.
Training. You will ensure that all Users accessing the Site for you or on your behalf have been given suitable training in the use of the Site. Company is, however, under no obligation to provide Users with training or assistance in relation to the use of the Site.
Fees. Company may charge certain fees for use of the Site (the “Fees”). The amount and nature of the Fees will be posted on the Site from time to time, and may be changed from time to time by Company by posting such updated Fees on the Site. The current Fee schedule can be found here: Fee Schedule. Users are liable for all Fees arising out of their use of the Site. Users must have a payment method on file when using the Site, and must pay all Fees and other amounts owed, including taxes, by the date due. If your payment method fails, or your account is past due, Company may collect amounts owed by charging other payment methods on file with it, and retain collection agencies and legal counsel in connection therewith. In addition, Company may charge late fees with respect to amounts past due, up to the maximum amount permitted by Applicable Law. Company may, in its sole discretion and without consent from, or payment, Fee reduction, or other credit to, Users, display third-party advertisements (including links and references thereto) or other Content in any part of the Site. Fees paid hereunder are final and non-refundable. As between you and Company, Company reserves the right to establish, remove and/or revise Fees for any use of the Site at any time in Company’s sole discretion. You will be responsible for Fees incurred under your account regardless of your awareness of such Fees or the amounts thereof. Company may from time to time provide certain Users with promotional offers and discounts that may result in different amounts charged for the same or similar use of the Site, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Site or the Fees applied to you. Company may use the Fees (and all proceeds therefrom) for any lawful purpose.
Indemnity. You will indemnify, defend, and hold harmless Company and all other Covered Persons against and from any and all actions, causes of action, claims, demands, costs, liabilities, expenses (including reasonable attorneys’ fees and court costs), and damages based on, arising out of or relating to: (i) use of the Site by you or with your Access Methods; (ii) your breach of this Agreement (including, without limitation, any Third Party Terms (hereinafter defined) or any representation, warranty or covenant made by you herein); (iii) your violation or alleged violation of any Applicable Law or any third party's rights; (iv) your infringement of any right to any Third Party IP (hereinafter defined) or allegations thereof; (v) your misuse of or reliance on any Content; (vi) any Content developed, provided, or otherwise related to your use of the Site; or (vii) negligence, willful misconduct, fraud, defamation, libel, violation of privacy rights, unfair competition, or allegations thereof to the extent caused by you or on your behalf.
Records. You will maintain such records, reports, information, agreements, and other documents as Company or any Third Party Content Provider may require from time to time to confirm compliance with this Agreement. Without limiting the foregoing, during the term of this Agreement and for seven (7) years thereafter, Company and each Third Party Content Provider (hereinafter defined) may, upon request (i) examine, copy, and extract information from your books, records, reports, information, agreements, and other documents relating to the Site; (ii) enter your premises or any other premises from which you or any User accesses the Site, examine any component of equipment and software used in connection with the Site or any Third Party Content (hereinafter defined), and observe any use of the Site or the Third Party Content; and (iii) take such actions as may be appropriate to otherwise verify compliance with this Agreement.
Notices; Modifications.
1. From time to time, Company may post legal notices to the Site. You shall not remove these notices, or any additional information contained along with any such notice. The Site may contain references to trademarks, copyrighted materials, technologies, products, data, processes and software and other proprietary rights of Company, Third Party Content Providers or other Persons. Except as necessary for your access to and use of the Site as contemplated by this Agreement, no license to or right in any such trademarks, copyrighted materials, technologies, products, data, processes, software or other proprietary rights of Company or any Third Party Content Provider is granted to or conferred upon you.
2. Company may modify the terms of this Agreement or any of the policies or guidelines governing the Site, at any time and in its sole discretion (including, without limitation, as required by any Third Party Content Provider), by posting the modified Agreement on the Site. Company will not be required to provide notice of any such modification directly to you. The modifications shall be effective upon such posting (unless some other date is specified in the posting, in which case that date shall be deemed the effective date for the modifications). You agree to review this Agreement periodically so that you are aware of any modifications. Your use of the Site indicates your full acceptance of this Agreement in its then-current form each time you use the Site. You agree that the notice and modification provisions provided in this Agreement are reasonable. You may not modify the terms of this Agreement or any of the policies or guidelines governing the Site without Company's express prior written consent.
3. Company reserves the right, in its sole discretion, to make unscheduled deployments of updates, enhancements or such other changes to the Site at any time that Company deems necessary or otherwise desirable, in each case to the full extent permitted by Applicable Law and without notice or liability to you.
Privacy. For the purposes of providing and maintaining the Site and for general administrative purposes with regard to this Agreement and the Site, Company and the Third Party Content Providers shall have access to certain information, including without limitation names, functions, business units and contact details which constitute “personal data”, “personal information” or any other similar term as defined in Applicable Law, or information or materials, in any form, that alone or in combination with other information or materials: (i) uniquely identifies any individual (e.g., names, addresses, telephone numbers, account information, financial information, etc.); or (ii) is considered “sensitive personal data” such as political opinions, ethnicity, religious beliefs, or health information (all such information, “Personal Data”) of your employees, temporary and casual workers, officers, directors, representatives, consultants, agents, independent contractors, and other personnel including, but not limited to, Users (“Personnel”). Company and each Third Party Content Provider has the right to use, disclose, and transfer the Personal Data in accordance with the provisions of this Agreement. Without limitation, the Personal Data will be stored and processed globally in by and on behalf of Company and the Third Party Content Providers, including in contact databases and finance systems and to third party affiliates, service providers, and agents of Company and such Third Party Content providers, and including transfers to countries outside of the applicable Personnel’s home country whose data protection standards are different than those of the origin country. Company shall implement commercially reasonable physical, technical and organizational measures to protect the Personal Data against accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of Personal Data over a network, and against all forms of unlawful processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation. It is your sole responsibility to ensure at its own cost that the collection of Personal Data and the making available of Personal Data to Company and Third Party Content Providers for the above purposes (including, without limitation any transfer thereof) complies with any Applicable Laws including without limitation any employment, labor, data protection and privacy laws. Without limiting the generality of the foregoing, you shall where and as legally required by Applicable Law inform the Personnel on, and obtain their explicit consent to, the processing (including transfer) of such Personal Data by Company for purposes of this Agreement, and your (and each User’s) acceptance of this Agreement shall constitute your (and each User’s) representation and warranty that all such consents have been granted. Without limiting the foregoing, information that Company gathers from Users via their use of the Site is governed by Company’s privacy policy: Privacy Policy.
Site Rules. You agree that while using the Site you will comply with the following rules (in addition to the other rules set forth elsewhere on the Site or in this Agreement):
1. You will not violate any Applicable Law in connection with your access to or use of the Site.
2. Your use of the Site and Content as permitted hereunder shall be solely for your own personal or internal business use in accordance with, and subject to the terms of, this Agreement.
3. You agree that the Site is only intended for manual use, and you will not access the Site through the use of any “bots” or other software applications that may be used to perform automated tasks or scripts, including accessing or in any way using the Site. You will not “scrape” the Site or otherwise use any data mining, robots, or similar data gathering or extraction methods in connection with the Site, and you will not use the Site in automatic, semi-automatic or manual tools designed to create virus signatures, virus detection routines, or any other data or code for detecting malicious code or data.
4. You will not (i) link to, mirror or frame any portion of the Site; or (ii) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Site or unduly burdening or hindering the operation and/or functionality of any aspect of the Site.
5. You will not submit or transmit to, through or in connection with the Site: (i) any unlawful, inaccurate, misleading, harassing, libelous, privacy invading, abusive, threatening, defamatory, vulgar, racist, or otherwise harmful or objectionable Content of any kind (including, but not limited to, any Content that depicts nudity, sexual conduct or violence); (ii) any Content that infringes upon any third party right (including, but not limited to, any copyright, trademark, right of publicity or privacy, or any other intellectual property or similar rights, as well as rights associated with any recognizable name, voice, person, or image (collectively “Third Party IP”)); (iii) any advertisements or other promotional materials or information for purposes of advertising or promoting any products or services, unsolicited commercial messages, spam, bulk communications, chain letters, or pyramid schemes; (iv) any virus, Trojan horse, worm, time bomb, trap door, disabling code, malware, or other computer programming device the purpose of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, otherwise harm, misdirect or impede in any manner any computer, software, hardware, firmware, system, or network; (v) any political or promotional opinions, in each case, for the purpose of promoting those opinions; (vi) any Content which may constitute or encourage conduct that is fraudulent, a criminal offense or civil wrong or otherwise violates any Applicable Law; or (vii) any Content which contains any disabling mechanism or protection feature designed to prevent its use by Company in the manner contemplated in this Agreement, or which would otherwise render inaccessible or impair the use thereof in any manner.
6. You will not dilute, tarnish or otherwise harm the Site or Company’s brand in any way, including through unauthorized use of Content, registering and/or using “SmartConfirm” or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Company’s domains, trademarks, taglines, promotional campaigns or Content.
7. In your use of the Site, you will not discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any violent, harmful, abusive or disruptive behavior.
8. While accessing or using the Site, you will not impersonate any Person, make any false statement regarding any Person (including but not limited to, any Person’s employment, agency or affiliation with any other Person), or create false identities for any reason.
9. You will not take any action that imposes (or may impose, as determined by Company in its sole discretion) an unreasonable or disproportionately large load on any servers or other infrastructure underlying the Site, and you will not use the Site in any way that causes (or is likely to cause, as determined by Company in its sole discretion) the Site or access to or use of it to be interrupted, interfered with, damaged or impaired in any way, including but not limited to any use of the Site that in any way interferes with or disrupts Company’s ability to provide the Site or any User’s ability to access the Site.
10. You will not (i) use the Site for timesharing or service bureau purposes or otherwise for the benefit of a third party; (ii) sell, lend, rent, resell, lease, sublicense or otherwise transfer to any third party or commercialize the Site (or any part thereof or Content therein) or any of the rights granted to you by Company in connection therewith; (iii) access or use the Site in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas; or (iv) download or copy any Content from the Site for your own benefit or for the benefit of another Person.
11. You will not use, modify, duplicate, print, transmit or distribute in any manner any Content or any other reports, research, materials, data or other information viewed, accessed or provided on the Site except as expressly permitted by this Agreement, solely for your personal or internal business use in accordance with, and subject to the terms of, this Agreement.
12. You will not attempt to gain access to the Site, other Users’ accounts, or any computer systems or networks connected to the Site through hacking, password mining or any other similar means.
13. You will not use any meta tags or any other “hidden text” utilizing any of Company’s names or trademarks without Company’s express written consent.
14. You will: (i) ensure that Content you submit through the Site (including the storage or transmission thereof) comply with this Agreement and any and all Applicable Laws; (ii) promptly handle and resolve any notices and claims relating to such information, including any notices sent to you by any Person claiming that any Content violates any Third Party IP rights and any other notices; and (iii) maintain appropriate security, protection and backup copies of such Content, which may include, your use of additional encryption technology to protect such Content from unauthorized access.
15. You represent and warrant that you have the full legal right, power and authority to provide Content provided in connection with your use of the Site and to grant the rights granted by you to Company with regard to such Content in this Agreement.
16. If after you submit any Content to Company, you receive any notice or otherwise learn in any way that any of the representations made by you in above were not accurate, complete and not misleading in all material respects or no longer are accurate, complete and not misleading in all material respects or of any claim by a third party to the effect of the foregoing, you will promptly provide Company with written notice all relevant facts regarding the same and if appropriate, remove the Content from the Site.
You further agree not to cause, encourage or permit any third party to do any of the foregoing on your behalf or in any way with your assistance or collaboration, including without limitation by providing other Persons with your Access Methods or by otherwise authorizing any third party to access or use the Site.
Third Party Content.
1. The Site may be made available or accessed in connection with third party services and content (including advertising, “Third Party Content”; the providers of such content, collectively, “Third Party Content Providers”) that Company does not control. You acknowledge that different terms of use and privacy policies (“Third Party Terms”) may apply to your use of such Third Party Content. Company does not endorse such third party services and content and in no event shall Company be responsible or liable for any products or services of such Third Party Content Providers. Additionally, each Third Party Content Provider will be a third-party beneficiary to this Agreement if you access the Site using applications developed for devices provided by such Third Party Content Providers. These third party beneficiaries are not parties to this Agreement and are not responsible for the provision or support of the Site in any manner. Your access to the Site is subject to all applicable Third Party Terms.
2. The Content may contain links to other websites that operate independently from Company and the Site. Linked websites may have their own agreements, terms of use, privacy statements, or notices. If you visit any linked websites we strongly suggest you review any such agreements, terms, statements, and notices. Whether or not such websites are linked to the Site, Company is not responsible for, and this Agreement is not applicable to, any websites that are not affiliated with or owned by Company (including, without limitation, any content, use, or practices of such websites). When making payments through the Site, you may be providing your information, including personal data to one or more third parties, who are solely responsible for processing any payments through the Site. Such payments are subject to any terms and agreements required by such third party payment processor(s), and Company is not responsible for such terms, processing such payments, or any act or omission of any such third party processor.
Disclaimer of Warranties. The Site is intended for personal and internal business purposes only. Company makes no warranty that the operation of the Site will be uninterrupted or error-free or as to the accuracy, completeness, suitability, or result obtained from the use of the Site or any Content. THE SITE AND ALL SERVICES AND INFORMATION AVAILABLE ON OR VIA THE SITE (INCLUDING, WITHOUT LIMITATION, ALL THIRD PARTY CONTENT) ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (i) ANY WARRANTIES CONCERNING THE AVAILABILITY, RELIABILITY, ACCURACY, COMPLETENESS, TIMELINESS OR SEQUENCING OF THE SITE OR THE INFORMATION, CONTENT, PRODUCTS OR SERVICES AVAILABLE ON OR VIA THE SITE; AND (ii) ANY WARRANTIES OF TITLE OR EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS. WITHOUT LIMITING THE FOREGOING, THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY ASSET, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE OR UNDER ANY OTHER CAUSE OF ACTION.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, THE THIRD PARTY CONTENT PROVIDERS OR ANY OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, PARTNERS, MEMBERS, CONSULTANTS, ADVISORS, LICENSORS, OR EMPLOYEES (COLLECTIVELY, “COVERED PERSONS”) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SITE, THE USE OF OR INABILITY TO USE THE SITE OR ANY CONTENT, PRODUCTS, SERVICES OR INFORMATION PURCHASED, OBTAINED OR STORED IN OR FROM THE SITE, TRADE IDEAS PROVIDED PURSUANT TO THE SITE, OR TRANSACTIONS ENTERED INTO IN CONNECTION THEREWITH, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ANY COVERED PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. IN NO EVENT SHALL THE LIABILITY OF ANY COVERED PERSON IN ANY CIRCUMSTANCE EXCEED $100. WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGRAPH, THESE LIMITATIONS ALSO APPLY TO ANY THIRD PARTY CLAIMS AGAINST USERS.
Arbitration; Applicable Laws.
1. By agreeing to this Agreement, you agree that you are required to resolve any claim that you may have against Company on an individual basis in arbitration, as set forth in this Agreement. This will preclude you from bringing any class, collective, or representative action against Company, and also preclude you from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against Company by someone else.
2. YOU AND COMPANY MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after this Agreement terminates or your relationship with Company ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. Except as expressly provided herein, this Arbitration Agreement applies to all Claims (defined below) between you and any Covered Persons. All Covered Persons shall be considered intended third party beneficiaries of this Agreement.
3. Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN YOU AND ANY COVERED PERSON (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND THE APPLICABLE COVERED PERSON(S). These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Site, any Content made available through the Site, your relationship with any Covered Person, the threatened or actual suspension, deactivation or termination of your User account or this Agreement, payments made by you or any payments made or allegedly owed to you, any promotions or offers made or allegedly made by or on behalf of a Covered Person, any Applicable Law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Company and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided herein.
4. BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND COMPANY ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
5. YOU UNDERSTAND AND AGREE THAT YOU AND COMPANY MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND COMPANY BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SECTION SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST COMPANY, WHICH ARE ADDRESSED SEPARATELY HEREINBELOW. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims. Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules (hereinafter defined), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (a) the dispute is filed as a class, collective, or representative action and (b) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining claims and may be brought in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
6. Any arbitration pursuant to this Arbitration Agreement will take place exclusively in Chicago, Illinois. This Arbitration Agreement shall not require arbitration of actions brought in small claims court, or any action (including, without limitation, actions) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
7. This Agreement and all terms and conditions included or incorporated by reference herein shall be governed by and interpreted in accordance with the laws of the State of Illinois applicable to agreements made and wholly performed therein.
8. Company controls and operates the Site from its headquarters in the United States of America, and Company makes no claim that the Site may be lawfully used outside of the United States. Access to the Site or certain Content may not be legal by certain Persons or in certain countries. If you access the Site from outside of the United States, you do so at your own risk and you are responsible for compliance with the laws of your jurisdiction. You may not use, export, re-export, import or transfer the Site (or any portion thereof or any rights thereto granted by Company) except as authorized by the applicable laws of the United States, the laws of the jurisdiction in which you gained access to the Site, and any other applicable law, rule, regulation, administrative, judicial, or governmental order, or legal process (including, without limitation, any requirements of securities exchanges and self-regulatory organizations, collectively, “Applicable Law”). In particular, but without limitation, neither the Site nor any portion thereof or any rights thereto may be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By accessing and using the Site, you represent and warrant that you are not located in any such country or on any such list. Company reserves the right to limit, in its sole discretion, the availability of the Site to any Person, geographic area, or jurisdiction, at any time.
Entire Agreement. This Agreement (including the Privacy Policy), as modified from time to time, constitutes the entire agreement between you and Company with respect to the subject matter hereof. This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof.
Joint Venture. Nothing in this Agreement shall constitute or create a joint venture, partnership, or any other similar arrangement between you and Company. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement.
Assignment. This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto. Company may assign this Agreement in whole or in part at any time without your consent. You may not assign this Agreement or delegate any of your obligations hereunder. Any purported assignment of this Agreement in violation of its terms shall be void.
Notice to Company. Any notice to Company that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by confirmed e-mail to legal@smartconfirmllc.com or when delivered in person or two (2) business days after mailed by first class, registered or certified mail, postage prepaid, to Company.
No Waiver of Rights. Failure of either party to enforce any of its rights under this Agreement will not act as a waiver of such rights.
Enforceability. If any portion of any provision of this Agreement is found invalid or unenforceable, that provision shall be enforced to the maximum extent possible and the remaining provisions of this Agreement shall remain in full force and effect.
Headings. Headings used in this Agreement are for convenience only. They do not constitute part of this Agreement.

By clicking "Agree", you acknowledge that you are over the age of 18 and have read and understood this Agreement and Privacy Policy and you are hereby confirming your authority to accept and intent to be bound by this Agreement and Privacy Policy in accordance with its terms.

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