Terms of Service

This License Agreement and Terms and Service (the “Terms”) is entered into between Work Smarter Digital, LLC (“Work Smarter Digital”) and you (Client”) for use of the Work Smarter Digital CRM software, a white label of the HighLevel software (“Software”) and effective as of the date of signature of both parties. Work Smarter Digital is a reseller of the HighLevel software. In addition to the provisions of this License Agreement and Terms of Service, Client is required to be in compliance with HighLevel’s Terms of Service, Privacy Policy and Privacy and Security Policy. Failure to comply could result in loss of access to the Work Smarter Digital CRM software without notice.

IMPORTANT: PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SOFTWARE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS THE SOFTWARE OR ACCEPT THIS AGREEMENT IF YOU ARE NOT AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SOFTWARE. THIS AGREEMENT REQUIRES THE USE OF ARBITRATION (SECTION 16) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

1. ACCOUNTS

1.1 Account Creation. In order to use the Software, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that:(a)all required registration information you submit is truthful and accurate and (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Work Smarter Digital website. Work Smarter Digital may suspend or terminate your Account in accordance with Sections 3 and 4.

1.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Work Smarter Digital of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Work Smarter Digital cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.  

2. PURPOSE AND CONSENT TO BE BOUND

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

• These Terms;

• The Privacy Policy available on the worksmarterdigital.com Work Smarter Digital 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 Client for the Software, including for example, Work Smarter Digital website or email product or program terms, ordering, activation, pricing and payment terms, where applicable. 

By clicking “I AGREE” on the payment page of Work Smarter Digital CRM indicating electronic acceptance, accessing, or using the Software, Client agrees to these terms. If Client does not agree, then do not click “I AGREE” and do not access or use the Software.

3. LICENSE GRANT AND RESTRICTIONS

3.1 Limited License. The Software is protected by copyright, trade secret, and other intellectual property laws. Client is expressly granted certain limited rights to use the Software, and all rights in the Software not expressly granted to Client in writing are reserved. While Client meets its payment obligations and complies with all terms of this Agreement, Work Smarter Digital grants Client a personal, nonexclusive, nontransferable, revocable, limited license to use the Software only for the period and type of use as set forth in this Agreement .

3.2 Restrictions. Client acknowledges the Software is licensed, not sold. Client will not use the Software in a manner that violates any applicable law, regulation or this Agreement. For example, unless authorized by Work Smarter Digital, in writing, Client 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 Client’s license to the Software to any other;

• 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 Client violates these terms, this Agreement and Client’s license to use the Software may be immediately terminated without Notice by Work Smarter Digital in its sole discretion.

3.3 Modification. Work Smarter Digital reserves the right, at any time, to modify, suspend, or discontinue Client’s license to use the Software (in whole or in part) with or without notice to you. You agree that Work Smarter Digital will not be liable to you or to any third party for any modification, suspension, or discontinuation of the license or any part thereof.

3.4 No Maintenance Provided. You acknowledge and agree that you are purchasing access to the software as is. Work Smarter Digital will have no obligation to provide you with maintenance in connection with the Software[LG12] .  

4. PAYMENT METHOD, CANCELLATIONS, REFUNDS, AUTO-RENEWAL, OPTIONAL FEE-BASE FEATURE USAGE, and TRANSFERS

4.1 Subscription Terms. Work Smarter Digital is a software-as-a-service (“SaaS”) product licensed on a subscription basis. The following terms apply, unless Work Smarter Digital notifies Client otherwise:

a.       Client’s purchase of the subscription is not contingent on the delivery of any future functionality or features, or dependent on any verbal or written public comments made by Work Smarter Digital, the software developer or owner, or any third-party regarding the Software’s future functionality or features.

b.      Payments will be billed and paid in U.S. dollars

c.       Client’s account will be billed on a monthly or annual basis starting when Client subscribes and provides payment information according to the payment terms on the Work Smarter Digital website for the Software at the time Client subscribed, unless stated otherwise in Client’s Client Services Agreement, if applicable.

d.      The fee Work Smarter Digital charges for Client’s 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. Client is responsible for paying all taxes associated with Client’s purchases. If Work Smarter Digital has the legal obligation to pay or collect taxes for which Client is responsible, Work Smarter Digital add these additional amounts to Client’s invoices and Client will pay those amounts unless Client provides Work Smarter Digital with a valid tax or other exemption certificate authorized by the appropriate taxing or other authority.

4.2 Payment Method. Client’s subscription must be paid with a valid debit or credit card acceptable to Work Smarter Digital pursuant to a preauthorization agreement. Client’s 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 only has access to the last Work Smarter Digital’s digits and will be used for billing account verification only. Should payment processing be unsuccessful on the first attempt, Work Smarter Digital will process the scheduled payment each day for the subsequent 3 days. Any payment declines not resolved within this 4-day time frame will incur a collection fee of $75.00.

4.3 Cancellations

Client must provide Work Smarter Digital with notice of Client’s intent to cancel a minimum of 21-days before the end of the payment period to cancel Client’s subscription. Cancellation request must be made via the Subscription Change requires at order.worksmarterdigital.com/change by the account holder or Client’s previously authorized representative. Work Smarter Digital may immediately terminate access to services if Client’s payment method is declined, or if there are any settlement failures.

4.4 Refunds

Once Client chooses a payment period (i.e., monthly or annually) there are no refunds during that payment period as the number of user subscriptions/licenses purchased for a set term cannot be decreased during the relevant subscription/license term. As a result, Work Smarter Digital does not provide prorated refunds during a payment period and Client will be billed through the remainder of the payment period. Any attempt to cancel the Agreement during a term will be deemed a default.

4.5 Auto-renewal

Client’s subscription automatically renews at the end of each payment term i.e., monthly or annually, the current rate, as required for Client to maintain access to Work Smarter Digital, unless Client’s subscription to the service is cancelled or terminated under the terms of this Agreement. If Client’s payment and registration information is not accurate, current and complete, and Client do not notify us promptly when such information changes, Work Smarter Digital may immediately suspend or terminate Client’s account, terminate Client’s license and refuse any further use of the Software.

4.6 Optional Fee-based Feature Usage Charges Work Smarter Digital’s product includes features that are at the Client’s discretion and include an additional usage-based fee. These features include but are not limited to Yext, WordPress Hosting, Content AI, Conversation AI, Premium Tasks, Workflow AI, Business Phone & Texting, and WhatsApp. Refer to this page for the latest details of features and fees. Client is charged a credit and the usage is deducted from the credit until the low balance amount is hit at which time the credit is reloaded. Upon cancellation, the remaining credit is not refunded.

4.7 Transfers

Client must provide Work Smarter Digital with notice of Client’s intent to transfer their account a minimum of 21-days before the end of the payment period to cancel and transfer Client’s subscription. Transfer requests must be made via the Subscription Change requires at order.worksmarterdigital.com/change by the account holder or Client’s previously authorized representative. There will be a fee of $300 charged for the transfer of each account. Work Smarter Digital may immediately terminate access to services if Client’s payment method is declined, or if there are any settlement failure.  

5. THIRD-PARTY LINKS & ADS; OTHER USERS

5.1 Third-Party Links & Ads. The Software may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Work Smarter Digital, and Work Smarter Digital is not responsible for any Third-Party Links & Ads. Work Smarter Digital provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third -Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.

5.2 Other Users. Your interactions with other Services users are solely between you and such users. You agree that Work Smarter Digital will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Services user, we are under no obligation to become involved.

5.3 Release. You hereby release and forever discharge Work Smarter Digital (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, presentandfuturedispute,claim,controversy,demand,right,obligation,liability,actionandcauseofaction of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services (including any interactions with, or act or omission of, other Services users or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”  

6. CLIENT’S PRIVACY AND PERSONAL INFORMATION.

Client can view Work Smarter Digital’s Privacy Policy on its website (worksmarterdigital.com/legal). Client is bound this Privacy Statement, subject to change in accordance with its terms, and as amended from time-to-time. Client acknowledges the Work Smarter Digital is maintaining Client’s data according to the Privacy Statement, as part of the Software.

7. CONTENT

Client is solely responsible for Client’s content. Client is legally responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials (‘Content’) uploaded, posted or stored through Client’s use of the Software. Client will not use the Software for any illegal purpose or in violation of any applicable local, state, federal or international law. Client is encouraged to archive Client’s Content regularly and frequently. Client is solely responsible for any Content that may be lost or unrecoverable through Client’s use of the Software. Client 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, pornography, child pornography, human trafficking, support for terrorism, or any other activity proscribed by law will have their accounts terminated, and may have their financial data erased, and they also may be reported to law enforcement officials in the appropriate jurisdictions. Work Smarter Digital is not responsible for the Content or data Client provide through Client’s use of the Software.

Client will not 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 Client’s 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 in writing, unsolicited commercial communications, such as, 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; an

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

8. INTELLECTUAL PROPERTY AND TERMS THAT APPLY TO YOUR COURSE AND COMMUNITY DATA

In operating Work Smarter Digital CRM, it's important for us to make it clear who owns what and who's responsible for what within the course and community data. You acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Software and its content are owned by HighLevel, Work Smarter Digital or Work Smarter Digital suppliers. Neither this Agreement (nor your access to the Software) transfers to you or any third party any right, title, or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 3. Work Smarter Digital and its suppliers reserve all rights not granted in this Agreement. There are no implied licenses granted under this Agreement.  

8.1 What You Own

Any data, information or material originated by you that you upload or otherwise transmit through Work Smarter Digital, including Creator Content, (“User Content”) is and remains Yours. Work Smarter Digital does not claim any intellectual property rights over User Content by virtue of Your use of Work Smarter Digital.

By uploading User Content to Work Smarter Digital:

1.      Work Smarter Digital may review User Content for any reason, including compliance with our Code of Conduct and prohibited content requirements, but Work Smarter Digital has no obligation to review anything that You upload.

2.      You are uploading User Content to the Work Smarter Digital at Your direction and Work Smarter Digital does not in any way certify or provide approval or permission prior to You uploading User Content.

3.      You agree that by uploading User Content to Work Smarter Digital, You are allowing Us to store Your User Content.

4.      You agree to provide Work Smarter Digital with all necessary licenses, including a worldwide, non-exclusive, royalty-free, sublicensable and transferable license to use (e.g, to display or transmit) User Content in furtherance of the Work Smarter Digital (In other words, because You own Your Content, You have to give Us permission to display it, or to use it for internal operational purposes, like storing it on Our servers).

5.      You are responsible for and own, or have the rights to use, all of Your User Content.

8.2 Content Free of Infringement of Any Third-Party Rights

1.      You agree that Your User Content and/or Posts do not infringe upon anyone else's intellectual property rights and that You have secured or obtained or received all necessary rights and permissions, as necessary, from any third parties who may own the content.

2.      In plain language, this means that if You're using someone else's work (including videos, text, charts, powerpoints, etc.) in Your User Content or Posts, You've gotten the content owner's permission to use it. You wouldn't want anyone selling any of Your User Content without Your permission. If You are going to use something that You didn't create, make sure You can demonstrate that You have the right to use it before You make it a part of Your User Content.

8.3 Processing of Data by Creators

1.      Creators are responsible for protecting all personal information they provide to, or receive from, Work Smarter Digital in connection with the use of Work Smarter Digital. HighLevel’s Data Processing Agreement ("DPA") forms part of these Terms and sets out Work Smarter Digital's and Creator's obligations with respect to the processing of personal information. Creators agree to abide by the DPA when and to the extent Data Protection Laws apply to a Creator's use of Work Smarter Digital to process Student Data or Creator Data (as these terms are defined in the DPA).

2.      Creators are considered controllers or "owners" of the personal information they collect from and about Students. In addition to agreeing to the terms of the DPA, Creators are also responsible for providing an appropriate privacy notice to their Students, respecting their Students' privacy rights in accordance with applicable law, and providing access to or deleting Students' personal information if they request and as required by applicable law.

3.      Creators are required to have their own Terms of Use and Privacy Policy for your course and community areas. See this article for more information.

9. MARKETING CAMPAIGNS – EMAILS AND OTHER COMMUNICATIONS

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

9.2 Prohibition on Spam. Work Smarter Digital 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”). Client is responsible for ensuring that Client’s use of Work Smarter Digital does not generate a number of spam or other complaints in excess of industry norms. Work Smarter Digital may terminate Client’s access to or use of the Software if Work Smarter Digital determines that Client’s level of spam or other complaints is higher than industry norms, as determined by Work Smarter Digital in its sole discretion. As a matter of privacy, Client will not be provided with information about those recipients who complain about Client’s use of the Software or file a spam report against Client although Client will be provided with a list of those individuals who opted-out from further communication.

9.3 Permission Required. Client will only import, access or otherwise use only contact lists in connection with the Software for which all listed parties have consented to receive correspondence from Client. It is not sufficient consent to receive email correspondence from Client if a person or organization participates in a survey or registers for an event, clicks “Like” on Client’s Facebook® page, or “follows” Client on Twitter® or other social media platforms. If Client requests a recipient confirm the Client has the recipient’s permission to send messages to that recipient and the recipient has not responded or does not respond affirmatively to such request for confirmation within 7 days, Client will not future messages to that recipient. Client will not send messages through the Software to distribution lists, newsgroups, publicly available press or media addresses, or purchased email addresses.

9.4 Reserved Rights. Work Smarter Digital reserve the right without notice to take all measures of any nature (whether legal, technical or otherwise) to prevent unsolicited bulk email or other unauthorized email, messages or campaigns from entering, utilizing or remaining within Work Smarter Digital network.

9.5 Messages. In Client’s use of the Software, Client will represent itself and its organization accurately and will not impersonate any other person, whether actual or fictitious.

9.6 Client is the sole sender. Client is the sole or designated “sender” (as this 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 Client using the Software.

9.7 Email, text or other communication requirements. For any email, text or other communication type sent using the Software:

a. the “from” line will accurately and in a non-deceptive manner identify Client’s organization, Client’s product or Client’s service,

b. the “subject or content” line will not contain any deceptive or misleading content regarding the overall subject matter of the message, and

c. for emails: Client will include Client’s valid physical address, which, if Client are located in the United States, may be a valid post office box, meeting the registration requirements established by the United States Postal Service.

d. Opt-out. Will contain a compliant “opt-out” link or keyword like STOP that allows subscribers to remove themselves from Client’s email or text contact list.  Client will not remove, disable or attempt to remove or disable the opt-out option.

9.8 Processing of Opt-outs. Client shall monitor and process opt-out requests received by Client directly and update the email addresses, text messages, etc. to which messages are sent through the Software. Client cannot charge a fee, require the recipient give Client 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 Work Smarter Digital website as a condition for honoring an unsubscribe request. As required under the CAN-SPAM Act and other applicable laws, Client acknowledges that Client is responsible for maintaining and honoring the list of unsubscribe requests following termination of Client’s Work Smarter Digital account and this Agreement.  

10. COMMUNICATIONS AND NOTICE.

10.1 Notice to Client. Work Smarter Digital may be required by law to send Client communications about the Software or Third-Party Products. Client agrees that Work Smarter Digital may send these communications to Client via email or by posting them on Work Smarter Digital’s website. Work Smarter Digital may also send business communications such as confirmations or notices, which will be delivered to Client via email or posted on Work Smarter Digital website.

10.2 Client will maintain control of Client’s account and any passwords, and accept service updates. Client is solely responsible for securely managing Client’s passwords for access to the Software. If Client becomes aware of any unauthorized access to Client’s Software account, theft or loss of Client’s password, Client agrees to contact Work Smarter Digital as soon as possible, but no later than 48 hours after discovering the breach. 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.

10.3 Notice to Work Smarter Digital. Where Client must give Notice to Work Smarter Digital under this Agreement, Client will send Notice to Worker Smarter at support@worksmarterdigital.com[LG19]  4826 25th Street North Arlington, VA 22207.  

11. DISCLAIMER OF WARRANTIES

11.1 CLIENT’S USE OF THE SOFTWARE AND CONTENT ACCESSIBLE THROUGH THE SOFTWARE IS ENTIRELY AT CLIENT’S 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, 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 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 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 CLIENT, ANY IMPLIED WARRANTIES ARE LIMITED TO 30 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER.

11.2 WORK SMARTER DIGITAL, ITS AFFILIATES, AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT CLIENT’S 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. CLIENT ARE SOLELY RESPONSIBLE FOR ENSURING THAT CLIENT’S USE OF THE SOFTWARE IS IN ACCORDANCE WITH APPLICABLE LAW.

11.3 Accuracy of disclosures. Every effort has been made to accurately represent the Software and its potential. Claims made of other Client’s results will be verified upon request. These testimonials and examples are not typical, represent exceptional results, don't apply to the average purchaser and are not intended to and do not represent or guarantee that Client will achieve the same or similar results. Each individual's success depends on that individual’s background, dedication, desire to implement and motivation.

11.4. No Legal, Financial or Medical Advice Given. Work Smarter Digital is not qualified to and does not provide legal, tax, accounting, financial or medical advice or any form of therapy. The information provided to Client by Work Smarter Digital is not intended as legal, tax, accounting, financial or medical advice or any form of therapy. Client should refer all legal, tax, accounting, financial, medical and psychological inquiries to appropriately qualified professionals.

11.5 Disclaimer of Guarantee. Client is 100% responsible for Client’s progress and results from using the Software. Work Smarter Digital cannot control Client or Client’s use of the Software. Work Smarter Digital makes no representations or guarantees verbally or in writing regarding its performance of this Agreement other than those specifically enumerated in this Agreement. Because of the nature of the Software and extent of Client’s use of the Software results experienced by other clients vary significantly. Client acknowledges this variance and Client’s responsibility for its results. Work Smarter Digital, its affiliates and suppliers disclaim the implied warranties of titles, merchantability, and fitness for a particular purpose.  

12. LIMITATION OF LIABILITY AND INDEMNITY.

12.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF WORK SMARTER DIGITAL, ITS AFFILIATES, EMPLOYEES, OFFICERS, OWNERS AND DIRECTORS, AND SUPPLIERS (COLLECTIVELY “RELEASEES”) FOR ALL MATTERS OR CLAIMS RELATING TO THIS AGREEMENT IS BE LIMITED TO THE AMOUNT CLIENT PAID FOR THE SOFTWARE DURING THE TWO (2) MONTHS PRIOR TO THE ACCRUAL OF THE CLAIM. SUBJECT TO APPLICABLE LAW, RELEASEES ARE NOT LIABLE FOR: (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 SYSTEMS REQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF WORK SMARTER DIGITAL, ITS AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF RELEASEES AND CLIENT’S EXCLUSIVE REMEDY WITH RESPECT TO THE SOFTWARE AND ITS USE.

12.2 CLIENT AGREES TO INDEMNIFY. DEFEND AND HOLD RELEASEES HARMLESS FROM ANY AND ALL CLAIMS, LIABILITY AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS, ARISING OUT OF CLIENT’S USE OF THE SOFTWARE OR BREACH OF THIS AGREEMENT (COLLECTIVELY REFERRED TO AS “CLAIMS”). RELEASEES RESERVE THE RIGHT, IN THEIR SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY CLAIMS. CLIENT AGREE TO REASONABLY COOPERATE AS REQUESTED BY RELEASEES IN THE DEFENSE OF ANY CLAIMS.

12.3 Release Of Liability. Client accepts all risks, foreseeable or unforeseeable, arising from the Program. Client remises, releases, acquits, and forever discharges the Releasees of and from all known or unknown, existing or future claims including any claims for damages, interest, penalties, legal fees and all other actions, third-party actions, causes of action, or suits at law or in equity, including claims for contribution, indemnity, negligence, or direct, indirect, incidental, special, punitive, consequential or exemplary damages related to the use or misuse of Releasee’s services or the Software, or because of any matter or thing done, omitted, or suffered to be done, for or related to Client’s use of the Software or reliance upon the information provided as part of the subscription. This release is made with advice of counsel or after knowingly declining advice of counsel.

12.4 Limitation on time to bring claims. All claims against the Releasees on any theory of liability must be lodged with the entity having jurisdiction within 6 months of the date the claim first accrues or otherwise the claim will be forever barred.  

13. CHANGES TO THIS AGREEMENT OR THE SOFTWARE. Work Smarter Digital reserves the right to change this Agreement from time-to-time upon reasonable notice to Client, and the changes will be effective when posted on Work Smarter Digital’s website for the Software or when Work Smarter Digital notifies Client by other means. Work Smarter Digital 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. Client’s continued use of the Software after Work Smarter Digital posts or otherwise notifies Client of any changes, indicates Client’s agreement to these changes, including price increases.  

14. TERMINATION.

Work Smarter Digital may immediately and without notice terminate this Agreement or suspend or terminate the license to the Software if Client fails to comply with these terms or if Client no longer agrees to receive electronic communications. Upon any termination Client must immediately stop using the Software and any outstanding payments will become due. Any termination of services will not affect Work Smarter Digital’s rights to any payments due to it. Other requirements regarding termination or cancellation of Client’s license to the Software may apply. Section 4 will survive and remain in effect even if the services are terminated or this Agreement is terminated, canceled or rescinded.  

15. GOVERNING LAW.

This Agreement will be governed by, construed, and enforced in accordance with the laws of the Commonwealth of Virginia regardless of the site of services. The parties hereto further agree that any action brought to enforce any right or obligation under this Agreement will be subject to the exclusive jurisdiction of the courts of Loudoun County, Virginia.  

16. DISPUTE RESOLUTION AND WAIVER OF JURY.

16.1. ARBITRATION OF DISPUTES OVER $25,000. PLEASE READ THIS ARBITRATION AGREEMENT CAREFULLY. IT IS PART OF YOUR CONTRACT WITH WORK SMARTER DIGITAL AND AFFECTS YOUR RIGHTS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.  

Any controversy or dispute arising out of or related to this Agreement more than $25,000 or that seeks non-monetary relief, is subject to mediation as a condition precedent to any further action. If mediation does not resolve the issue, the parties agreed to binding arbitration of the remaining issues.

Mediation or Arbitration proceedings may be initiated by any Party upon notice to the other Party and to the McCammon Group, or any group the parties mutually agree to thereto ("Association"), or any other comparable group upon which the Parties agree. Arbitration proceedings will be conducted by an arbitrator under the Commercial Arbitration Rules of the American Arbitration Association or other rules adopted by the Association. The Notice of Arbitration must specify all alleged disputes or claims. The Arbitration will be conducted in the Commonwealth of Virginia, Arlington County. The arbitrator will be selected from a list of arbitrators proposed by the Association or such other procedures as adopted by the Association or other arbitrator acceptable to the Parties and may be an attorney licensed to practice law. If the Parties fail to agree upon the selection of arbitrator within fifteen (15) days after delivery to each Party of the list as proposed by the Association, then at the request of any Party, the arbitrator will be selected at the discretion of the Association. The Parties will each initially bear their costs and expenses of the arbitration proceedings. Judgment on the award of the arbitrators may be entered in any court of competent jurisdiction, under Virginia law.

If a breach occurs or threatened breach by either party of the provisions of this Agreement, the parties consent and agree that the non-breaching party is entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against the breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages or that money damages would not afford an adequate remedy, and without the necessity of posting any bond or other security. These remedies are in addition to, not in lieu of, legal remedies, monetary damages, or other forms of relief. Nothing in this Agreement or this Section VII, will be deemed to prohibit a party from suing in a Arlington County, Virginia court to obtain injunctive relief, record the arbitration award as a judgment, and to pursue collection actions.

16.2 The parties waive all rights to a trial by jury in any action, counterclaim, or proceeding based upon, or related to, the subject of this Agreement. This waiver applies to all claims against all parties to the actions or proceedings, including individuals or entities who are not parties to this Agreement. This waiver is knowingly, intentionally, and voluntarily made by the parties and each acknowledges that neither the other parties hereto, nor any person acting on their behalf has made any representations of fact to induce this waiver of trial by jury or to modify or nullify its effect. The parties have read and understand the meaning and ramifications of this waiver provision.

16.3 The termination of this Agreement does not release either party from any obligations under this Section 16.

16.4 Time Limits.
If you or Work Smarter Digital pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the Arbitration Rules for the pertinent claim.

16.5 Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Work Smarter Digital and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Work Smarter Digital.

16.6 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Work Smarter Digital in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND WORK SMARTER DIGITAL WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

16.7 Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

16.8 Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

16.9 Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

16.10 Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

16.11 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Tactical Edge.

16.12 Small Claims Court. Notwithstanding the foregoing, either you or Work Smarter Digital may bring an individual action in small claims court.

16.3 Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or ligations under this Arbitration Agreement.

16.4 Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secrets shall not be subject to this Arbitration Agreement.

16.15 Courts. In any circumstance where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Arlington County, Virginia, for such purpose.  

17. GENERAL.  

17.1 Disclosures. Work Smarter Digital is located at the address in Section 10.3. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at 1-800-952-5210.

17.2 Electronic Communications. The communications between you and Work Smarter Digital use electronic means, whether you use the Software or send us emails, or whether Work Smarter Digital posts notices on the Website or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Work Smarter Digital in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Work Smarter Digital provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. By creating an account you consent to receive newsletters, marketing materials, and promotional information from Work Smarter Digital. You may opt out of receiving marketing communications by clicking the unsubscribe link provided in our emails. However, we may still send you administrative messages related to updates to this Agreement and Conditions, changes in functionality to the App, the Privacy Policy, or any of our services you have subscribed to even after you have opted out of receiving marketing communications. The foregoing does not affect your non-waivable rights.  

17.3 No Waiver. No delay or failure by either party to exercise any right hereunder and no partial exercise of any such right will constitute a waiver of that or any other right unless otherwise expressly provided herein. Termination of this Agreement by either party is without prejudice to pursuit of any rights or remedies under this Agreement.

17.4 Force Majeure. No party will be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including, without limitation: (a) acts of God and natural disasters; (b) flood, fire, or explosion; (c) war, invasion, riot, or other civil unrest; (d) actions, embargoes, or blockades in effect on or after the date of this Agreement; (e) national or regional emergency, epidemics, pandemics or government-mandated shut downs or closings; (f) strikes, labor stoppages, or slowdowns or other industrial disturbances; (g) compliance with any law or governmental order, rule, regulation, or direction, or any action taken by a governmental or public authority, including but not limited to imposing an embargo, export or import restriction, quota, or other restriction or prohibition, or failing to grant a necessary license or consent; (h) shortage of adequate power or telecommunications or transportation facilities; (i) inability to secure labor; or (j) any other event that is beyond the reasonable control of that party (each of the foregoing, a “Force Majeure Event”). If Work Smarter Digital cannot provide Services due to a Force Majeure Event and it reasonably believes the Force Majeure Event will continue for at least 30 days, then CM+F may terminate the Agreement without penalty.

17.5 No Third Party Benefit or Remedy.

This Agreement is for the sole benefit of the parties hereto and their respective successors, except as noted in the Indemnification provision, and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other third party any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.

17.6 The Parties’ rights under this Agreement are cumulative and will not be construed to limit other remedies unless those remedies are precluded as a matter of law.

17.7 In the event of any breach of this Agreement and action for enforcement hereof, the prevailing party will recover from the other party all costs, and expenses including reasonable attorney’s fees reasonably, with interest at 15% per annum on all amounts deemed due and owing (including costs, expenses and attorney’s fees), which interest accrues from the date of the claim until fully paid. Any judgment or award will to the extent allowed by law contain a provision for the recovery of any subsequently incurred costs, expenses and actual attorney’s fees arising out of the collection of the judgment or award. The termination of this Agreement does not release Client from any obligations under this Section

14.4 of the Terms. 

17.8. Option for Legal Counsel.

The Parties acknowledge that the terms of this Agreement arose from negotiations and discussions between the Parties, each of whom were or had the option to be represented by legal counsel. Accordingly, no claimed ambiguity in this Agreement shall be construed against either Party claimed to have drafted or proposed the language in question, and any court reviewing this Agreement shall treat its language as if it had been chosen by both Parties.

17.9 Headings.

The headings in this Agreement are for convenience of reference only and have no legal meaning, force or effect. The Recitals, however, are incorporated as a substantive part of this Agreement.

17.10 Counterparts.

This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

17.11 Fully Negotiated Agreement.

Both parties to this Agreement have been represented by counsel or have had an opportunity to be represented and all provisions of this Agreement have been fully negotiated. No provision will be interpreted against either party merely because that provision was drafted by the party or its counsel. 17.12 Entire Agreement.

This Agreement, as defined herein is the entire agreement between Client and Work Smarter Digital 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 13 above. 

17.13 Severability.

All provisions of this Agreement will be applicable only to the extent that they do not violate any applicable law and are intended to be limited to the extent necessary so that they will not render this Agreement invalid, illegal or unenforceable under any applicable law. If any provision, clause, terms, or words of this Agreement or any application thereof will be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of other provisions, clauses, terms or words of this Agreement or of any other application of such provision will in no way be affected thereby.

17.14 Assignment Void.

Any assignment or transfer of this Agreement in violation of this Section is void. Client will not assign this Agreement without Work Smarter Digital’s prior written consent. Work Smarter Digital may assign or transfer this Agreement, without Client’s consent. to: (a) an affiliate, (b) another company through a sale of Work Smarter Digital’s assets or membership interests, or (c) a successor by merger.