TERMS OF SERVICE

WORK SMARTER CRM

LICENSE AGREEMENT & TERMS OF SERVICE

Last Updated: May 1 2020

Thank you for selecting the Software offered by Work Smarter Digital, LLC (referred to as “Work Smarter CRM,” “we,” “our,” or “us”). Please review these license terms (“Agreement”) thoroughly.


This Agreement is a legal agreement between you and Work Smarter Digital, LLC. By clicking “I AGREE,” indicating acceptance electronically, accessing or using the Software, you agree to these terms. If you do not agree to this Agreement, then do not indicate acceptance of the Agreement and do not use the Software.


1. AGREEMENT

This Agreement describes the terms governing your use of the Software including content, updates and new releases (collectively, the “Software”) and gives you certain rights and responsibilities, as more fully described herein. The Agreement includes by reference:

• The Privacy Policy available on the worksmarter.com website;

• Additional Terms and Conditions for the Software, including any licenses, terms of service or other terms of use from third parties offered in connection with the Software; and

• Any terms provided separately to you for the Software, including for example, web or email product or program terms, ordering, activation, pricing and payment terms, where applicable.



2. LICENSE GRANT AND RESTRICTIONS

2.1 The Software is protected by copyright, trade secret, and other intellectual property laws. You are only granted certain limited rights to use the Software, and all other rights in the Software not granted to you in writing are reserved. As long as you meet any applicable payment obligations and comply with this Agreement, Work Smarter Digital, LLC grants you a personal, limited, nonexclusive, nontransferable, revocable license to use the Software only for the period of use provided in the Client Services Agreement, if applicable, or as set forth in this Agreement.


2.2 You acknowledge and agree that the Software is licensed, not sold. You agree not to use the Software in a manner that violates any applicable law, regulation or this Agreement. For example, unless authorized by Work Smarter Digital, LLC in writing, you agree you will not:

• Provide access to or give the Software or any part of the Software to any third party;

• Reproduce, duplicate, copy, deconstruct, reverse-engineer, sell, trade or resell the Software;

• Transfer your license to the Software to any other party ;

• Permit any third party to benefit from the use or functionality of the Software via a rental, lease, timesharing, service bureau, hosting service, or other arrangement; or

• Upload, host, use or access the Software via a timesharing, service bureau, virtualization, application hosting or other remote access arrangement.

If you violate any of these terms, this Agreement and your license to use the Software may be terminated by Work Smarter Digital, LLC in its sole discretion.


3. PAYMENT METHOD, CANCELLATIONS, REFUNDS, and AUTO-RENEWAL

Work Smarter CRM is a software as a service (“SaaS”) product licensed on a subscription basis and the following terms apply, unless Work Smarter Digital, LLC notifies you.

You agree that your purchase of a subscription is not contingent on the delivery of any future functionality or features, or dependent on any verbal or written public comments made by us regarding future functionality or features.

Payments will be billed to you in U.S. dollars, and your account will be billed when you subscribe and provide payment information according to the payment terms on the website for the Software at the time you subscribed, unless stated otherwise in your Client Services Agreement, if applicable. Current payment term options: Monthly, Annual (pre-paid).


3.1 Payment Method

Your subscription must be paid with a valid debit or credit card acceptable to Work Smarter Digital, LLC.

Currently, invoicing and paying by check is not available for your Work Smarter CRM subscriptions.

Your credit card information is managed in a secure, encrypted environment (Level 1 PCI compliant, managed using multi encrypted keys and does not have ability to connect to the internet). Work Smarter Digital, LLC will only have access to the last four digits and will be used for billing account verification only.


3.2 Cancellations

A minimum 7-day notice before the end of the payment period is required to cancel your Work Smarter CRM subscription.

Cancellation request must be made, in writing, via email by the account holder or authorized representative.

Work Smarter Digital, LLC reserves the right to immediately terminate access to services in the event your payment method is declined, or if there are any settlement failures.


3.3 Refunds

Once you choose a payment period there are no refunds during that chosen payment period. Work Smarter Digital LLC, does not provide prorated refunds during a payment period. You will be billed through the remainder of the payment period.

Payments/fees are based on the services provided and user licenses purchased and not the actual usage. The number of user subscriptions/licenses purchased cannot be decreased during the relevant subscription/license term.

Your subscription does not include any taxes, government assessments of any nature, levies or duties including: sales tax, value-added tax, use or withholding taxes, assessable by any jurisdiction. You are responsible for paying all taxes associated with your purchases. If we have the legal obligation to pay or collect taxes for which you are responsible, we will invoice you and you will pay that amount unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.


3.4 Auto-renewal

Work Smarter CRM automatically renews monthly and annual subscription at the current rate, as required for you to maintain access to Work Smarter CRM, unless your subscription to the service is cancelled or terminated under this Agreement.

If your payment and registration information is not accurate, current and complete, and you do not notify us promptly when such information changes, we may immediately suspend or terminate your account, terminate your license and refuse any further use of Work Smarter CRM.


4. YOUR PRIVACY AND PERSONAL INFORMATION.

You can view Work Smarter Digital LLC’s Privacy Policy on the Work Smarter Digital website. You agree to be bound by the applicable Work Smarter CRM Privacy Statement, subject to change in accordance with its terms. Most importantly, you agree: To Work Smarter CRM maintaining your data according to the Work Smarter Digital LLC Privacy Statement, as part of the Software.


5. CONTENT

You are responsible for your content. You are legally responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (‘Content’) uploaded, posted or stored through your use of the Software. You agree not to use the Software for any illegal purpose or in violation of any applicable local, state, federal or international law. You are encouraged to archive your Content regularly and frequently. You are responsible for any Content that may be lost or unrecoverable through your use of the Software. You agree that you will not use the Software to share, store, or in any way distribute data that is not in accordance with the law. Any users suspected of having information which involves fraud, embezzlement, money laundering, insider trading, support for terrorism, or any other activity proscribed by law may have their accounts terminated, their financial data erased, and they also may be reported to law enforcement officials in the appropriate jurisdictions. Work Smarter Digital LLC is not responsible for the Content or data you provide through your use of the Software.

You agree not to use the Software to upload, post, distribute, link to, publish, reproduce, engage in or transmit any of the following, including but not limited to:


(a) Illegal, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that would encourage or constitute an attack on others, or criminal or civil liability under any local, state, federal or foreign law;


(b) Content or data that would impersonate someone else or falsely represent your identity or qualifications, or that constitutes a breach of any individual’s privacy, including posting images about children or any third party without their consent (or a parent’s consent in the case of a minor);


(c) Except as otherwise permitted by Work Smarter Digital LLC in writing, advertisements, solicitations, investment opportunities, chain letters, pyramid schemes, other unsolicited commercial communication or engage in spamming or flooding;


(d) Virus, trojan horse, worm or other disruptive or harmful software or data; and


(e) Any information, software or Content which is not legally yours and may be protected by copyright or other proprietary right, or derivative works, without permission from the copyright owner or intellectual property rights owner.


6. MARKETING CAMPAIGNS – EMAILS AND OTHER COMMUNICATIONS

(a) Work Smarter CRM provides you with the ability to create marketing campaigns. These campaigns allow you to schedule and send out emails and other forms of communication automatically. It is your responsibility to make sure that you set up your marketing campaigns in the proper manner so that emails or other communication are sent only to the intended recipients. Work Smarter CRM is not responsible for the campaigns that are used, including the campaigns provided as examples. It is your responsibility to evaluate, test and confirm that all campaigns that you use will provide their intended results and that your campaigns contact the correct users and do not send out spam. You are solely responsible for your marketing campaigns and for an increase of clients and business or for any loss of clients or loss of business.


(b) Prohibition on Spam. Work Smarter CRM may not be used for the sending of unsolicited email messages or other forms of communication including but not limited to text messages and/or voice drops (“spam”). You are responsible for ensuring that your use of Work Smarter CRM does not generate a number of spam or other complaints in excess of industry norms. We may terminate your access to or use of Work Smarter CRM if we determine that your level of spam or other complaints is higher than industry norms, as determined by us in our sole discretion. As a matter of privacy, you will not be provided with information about those recipients who complain about your use of Work Smarter CRM or file a spam report against you although you will be provided with a list of those clients who have chosen to opt-out from receiving further communication.


(c) You agree to import, access or otherwise use only contact lists in connection with Work Smarter CRM for which all listed parties have consented to receive correspondence from you. It is not sufficient consent to receive email correspondence from you if a person or organization participates in a survey or registers for an event, clicks “Like” on your Facebook® page, or “follows” you on Twitter®. If you request a recipient to confirm that you have the recipient’s permission to send messages to such recipient and such recipient has not responded or does not respond affirmatively to such request for confirmation, you agree that you shall not send messages to that recipient. You agree not to send messages through Work Smarter CRM to distribution lists, newsgroups, publicly available press or media addresses, or purchased email addresses.


(d) We reserve the right without notice to take all measures of any nature (whether legal, technical or otherwise) to prevent unsolicited bulk email and/or other unauthorized email, messages or campaigns from entering, utilizing or remaining within our network.


(e) Messages. In your use of Work Smarter CRM, you shall represent yourself or your organization accurately and will not impersonate any other person, whether actual or fictitious.


(f) You agree that you are the sole or designated “sender” (as such term is defined in the CAN-SPAM Act of 2003 and any rules or regulations adopted under such act (the “CAN-SPAM Act”)) of any message sent by you using Work Smarter CRM.


(g) You agree that for any email, text or other communication type sent by you using Work Smarter CRM,

i. the “from” line of any message will accurately and in a non-deceptive manner identify your organization, your product or your service,

ii. the “subject or content” line of any message sent by you using Work Smarter CRM will not contain any deceptive or misleading content regarding the overall subject matter of the message, and

iii. for emails you will include your valid physical address, which, if you are located in the United States, may be a valid post office box meeting the registration requirements established by the United States Postal Service.


(h) Opt-out. Every email, text or other type of message sent in connection with Work Smarter CRM must contain an “opt-out” link that allows subscribers to remove themselves from your contact list. You agree that you will not remove, disable or attempt to remove or disable the link. You shall monitor and process opt-out requests received by you directly and update the email addresses, text messages, etc. to which messages are sent through your Work Smarter CRM account. You cannot charge a fee, require the recipient to give you any personally identifying information beyond an email address or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an unsubscribe request. As required under the CAN-SPAM Act and other applicable laws, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your Work Smarter CRM account and this Agreement.


7. ADDITIONAL TERMS YOU AGREE TO

7.1 Communications choices. Work Smarter Digital LLC may be required by law to send you communications about the Software or Third Party Products. You agree that Work Smarter Digital LLC may send these communications to you via email or by posting them on our website. We may also send business communications such as confirmations or notices, which will be delivered to you via email or posted on our website. You are required to receive these communications. You can choose not to receive some types of communication, such as marketing messages.


7.2 You will maintain control of your account and any passwords, and accept service updates. You are responsible for securely managing your password(s) for access to the Software. If you become aware of any unauthorized access to your Software account, theft or loss of your password, you agree to contact Work Smarter Digital LLC as soon as possible. The Software may periodically be updated with tools, utilities, improvements, third party applications, or general updates to improve and enhance the features and performance of the Software.


8. DISCLAIMER OF WARRANTIES

8.1 YOUR USE OF THE SOFTWARE AND CONTENT ACCESSIBLE THROUGH THE SOFTWARE IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WORK SMARTER DIGITAL LLC, ITS AFFILIATES, AND ITS THIRD PARTY SERVICE OR DATA PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY REFERRED TO AS, ‘SUPPLIERS’) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SOFTWARE IS FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SOFTWARE. WORK SMARTER DIGITAL LLC AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SOFTWARE IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. FURTHER, WORK SMARTER DIGITAL LLC DOES NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE, CONTENT OR DATA TRANSMITTED THROUGH THE SOFTWARE. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER.


8.2 WORK SMARTER DIGITAL LLC AND ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SOFTWARE WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS. THIS DISCLAIMER APPLIES TO BUT IS NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (“HIPAA”), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SOFTWARE IS IN ACCORDANCE WITH APPLICABLE LAW.


9. LIMITATION OF LIABILITY AND INDEMNITY.

9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF WORK SMARTER DIGITAL LLC, AND ITS AFFILIATES AND SUPPLIERS FOR ALL MATTERS OR CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SOFTWARE DURING THE TWO (2) MONTHS PRIOR TO SUCH CLAIM. SUBJECT TO APPLICABLE LAW, WORK SMARTER DIGITAL LLC AND ITS AFFILIATES AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET WORK SMARTER DIGITAL LLC SYSTEMS REQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF WORK SMARTER DIGITAL LLC AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF WORK SMARTER DIGITAL LLC, ITS AFFILIATES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SOFTWARE AND ITS USE.


9.2 YOU AGREE TO INDEMNIFY AND HOLD WORK SMARTER DIGITAL LLC AND ITS AFFILIATES AND SUPPLIERS HARMLESS FROM ANY AND ALL CLAIMS, LIABILITY AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS, ARISING OUT OF YOUR USE OF THE SOFTWARE OR BREACH OF THIS AGREEMENT (COLLECTIVELY REFERRED TO AS “CLAIMS”). WORK SMARTER DIGITAL LLC RESERVES THE RIGHT, IN ITS SOLE DISCRETION AND AT ITS OWN EXPENSE TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY CLAIMS. YOU AGREE TO REASONABLY COOPERATE AS REQUESTED BY WORK SMARTER DIGITAL LLC IN THE DEFENSE OF ANY CLAIMS.


10. CHANGES TO THIS AGREEMENT OR THE SOFTWARE.

We reserve the right to change this Agreement from time to time upon reasonable notice to you, and the changes will be effective when posted on our website for the Software or when we notify you by other means. We may also change or discontinue the Software, in whole or in part, including but not limited to, any feature or aspect of the Software, Internet-based services, pricing, technical support options, and other product-related policies. Your continued use of the Software after Work Smarter Digital LLC posts or otherwise notifies you of any changes, indicates your agreement to the changes.


11. TERMINATION.

Work Smarter Digital LLC may immediately and without notice terminate this Agreement or suspend or terminate the license to the Software if you fail to comply with these terms or if you no longer agree to receive electronic communications (see Section 7.1). Upon any termination you must immediately stop using the Software and any outstanding payments will become due. Any termination of this Agreement shall not affect Work Smarter Digital LLC’s rights to any payments due to it. Other requirements regarding termination or cancellation of your license to the Software may apply based on your Client Services Agreement, if any. Sections 1, 5, and 7 through 14 will survive and remain in effect even if the Agreement is terminated, canceled or rescinded.


12. GOVERNING LAW.

The law of the Commonwealth of Virginia governs this Agreement without regard to its conflicts of laws provisions.


13. DISPUTES.

ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE SOFTWARE OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this provision; the arbitrator shall apply Virginia law to all other matters. Notwithstanding anything to the contrary, any party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND WORK SMARTER DIGITAL LLC ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.


This Section 13 shall survive expiration, termination, or recession of this Agreement.


14. GENERAL.

This Agreement is the entire agreement between you and Work Smarter Digital LLC and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. This Agreement may be modified only by a written amendment signed by the parties or as provided in this Agreement in Section 10 above. If any court of law, having jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. You cannot assign or transfer ownership of this Agreement. However, Work Smarter Digital LLC may assign or transfer it without your consent to:


(a) an affiliate,


(b) another company through a sale of assets by Work Smarter Digital LLC, or


(c) a successor by merger.


Any assignment in violation of this Section shall be void.

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