Terms of Service

Last updated: July 17th, 2017

Yellow Melon, Ltd. (owner and provider of the web service known as ‘Smoothbook’ and henceforth known as “Provider”) will provide you access to the Web Services and related website located at www.smoothbook.co or such other Web addresses or uniform resource locators as may be specified by the Provider (collectively, the “Site”), specifically and solely for the purposes of requesting and receiving Data, Third Party Data, and services under the related Subscription Plan. Please read carefully the following terms and conditions (this “Agreement”).This Agreement governs your access to and use of the Site, Web Services, Data and Third Party Data, and constitutes a binding legal agreement between you (referred to herein as “You” or “Customer”) and Provider.

YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING OR USING THE SITE, WEB SERVICES, DATA OR THIRD PARTY DATA, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, WEB SERVICES, DATA OR THIRD PARTY DATA. If you accept or agree to this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement and, in such event; “Customer”, “User”, “You” and “Your” will refer and apply to that company or other legal entity.

This Agreement shall be effective as of the date that user accepts this Agreement by registering and creating an account with the provider (see ‘registration’ below). The user may terminate this Agreement by notifying the provider in writing of their wish to do so. the provider may terminate this Agreement without cause at any time. the provider may terminate user’s use of the Services if, in the provider’s sole discretion, user breaches or otherwise fails to comply with this Agreement. the provider may terminate this Agreement and/or user’s access to the Services if user’s non-payment of any fees.

MODIFICATION

The provider reserves the right to modify, discontinue or terminate the Site, Web Services, Data and Third Party Data or to modify this Agreement, at any time and without prior notice. If Provider modifies this Agreement, Provider will post the modification on the Site or provide you with notice of the modification. Provider will also update the “Last Updated Date” at the top of this Agreement. By continuing to access or use the Site, Web Services, Data and Third Party Data after Provider has posted a modification on the Site or has provided you with notice of a modification, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to You, Your only recourse is to cease using the Site, Web Services, Data and Third Party Data.

REGISTRATION

In order to access the Site, Web Services, Data and Third Party Data, You must register to create an account (“Account”). During the registration process, You will be required to provide certain information and You will establish a password. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Provider reserves the right to suspend or terminate Your Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding Your password. You agree not to disclose Your password to any third party and to take sole responsibility for any activities or actions under Your Account, whether or not You have authorized such activities or actions. You will immediately notify Provider of any unauthorized use of Your Account.

SUBSCRIPTION FEES

The user shall pay all fees to the provider associated with the Subscription as set forth on the pricing overview page. The user shall pay for all fees ordered for an entire Subscription, whether or not the user uses the Services or all the Support to which it is entitled in the Subscription. user shall make future fee payments for renewal at the end of each expiring subscription period. All fees paid to the provider are non-refundable. the provider reserves the right to modify its fees, and notice of such changes will be posted on its pricing overview page. the provider will automatically bill user’s credit card or alternative payment form in the billing frequency established by the length of user’s Initial Subscription Term. the provider may terminate the Subscription if the billing or contact information is false, fraudulent or invalid. user will also pay all taxes, including sales, use, personal property, value-added, excise, customs fees, import duties, stamp duties and any other similar taxes and duties, including penalties and interest, imposed by any United States federal, state, provincial or local government entity or any non-US government entity on the transactions contemplated by this Agreement, excluding taxes based upon the provider’s net income.

In the event that user cancels their subscription before the term of the subscription has expired, the user is not entitled to any refund for any unused portion of the subscription, however they will retain the unused portion of their ability to use the system until the end of the subscription period.

ENHANCEMENTS AND MODIFICATIONS

Provider will provide to Customer enhancements or modifications (“Updates”) to the Web Services as they become available. Customer acknowledges that additional Subscription Fees may be charged for the use of Updates, and that Provider has sole discretion in identifying which Updates require the payment of additional Subscription Fees. Provider acknowledges that Customer has sole discretion in deciding to use Updates and is only responsible for additional Subscription Fees for those Updates that Customer decides to use. Should Customer decide to use Updates that require additional Subscription Fees, then new Subscription Fees for Customer’s use of the Web Services shall be (i) as described and/or as selected by You via the Site in connection with purchase to use the Web Services, Data and Third Party Data or (ii) negotiated between You and Provider by creating an addendum to this Agreement. Provider agrees and acknowledges that Customer has spent time and resources to integrate the Web Services into Customer’s computer systems. As a result, Provider agrees to notify Customer in writing at least thirty (30) business days prior to introducing any Update that will affect or impair the operation, functionality, or business purpose of the Web Services. Should any Update remove or alter any function of the Web Services or any portion the Data or Third Party Data that was available prior to the Update, such that it degrades the functioning of Customer’s computer systems, Customer may immediately terminate this Agreement.

DATA PROTECTION AND POLICY

Any data collected by the provider whether from the customer or any other third parties will be stored and used in accordance with the UK data protection act of 1998 : http://www.legislation.gov.uk/ukpga/1998/29/contents .

Unless otherwise agreed all data, howsoever acquired, held on the provider’s servers is the property of the provider where such ownership is not otherwise provided for in UK law.

The provider will never, unless required by law, release data on its servers to any third party whether for commercial or any other purpose.

IF YOU COLLECT, VIA THE PROVIDER, ANY DATA FROM ANY THIRD PARTIES THEN YOU AGREE TO USE AND STORE THE THIRD PARTY’S DATA IN ACCORDANCE WITH THE UK DATA PROTECTION ACT OF 1998 AND ANY OTHER APPLICABLE DATA PROTECTION AND PRIVACY LAWS. THE PROVIDER WILL NOTIFY THE RELEVANT AUTHORITIES IMMEDIATELY OF ANY MISUSE OF THIRD PARTY DATA.

The provider will make every reasonable effort to ensure the integrity and security of data held on its servers. However the provider takes no responsibility whatsoever for the data held on its servers whether relating to you or any third party. You hereby indemnify the provider from any liability relating to the loss, corruption, misuse, release or unauthorised transfer of any data held on its servers, whatsoever the cause, even where the cause is the negligence of the provider.

WARRANTIES, INDEMNITY, AND LIMITATION OF LIABILITY

EXCEPT AS EXPRESSLY PROVIDED IN THE SERVICES DESCRIPTION, THE PROVIDER, THE SERVICES AND THE SUPPORT ARE PROVIDED TO USER STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE PROVIDER AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE PROVIDER OR THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE, (B) THE PROVIDER, THE SERVICES OR SUPPORT WILL MEET THE USER’S REQUIREMENTS OR EXPECTATIONS, (C) ERRORS OR DEFECTS WILL BE CORRECTED, OR (D) THE PROVIDER, THE SERVICES OR SUPPORT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND THE PROVIDER IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

LIMITATION OF LIABILITY

UNLESS OTHERWISE PROVIDED HEREIN, IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY TO CUSTOMER AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO OR USE OF THE WEB SERVICES EXCEED THREE (3) MONTHS PRORATED SUBSCRIPTION FEES, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION. PROVIDER WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR RELIANCE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR ANY DAMAGES RESULTING FROM ANY INTERRUPTION OR DISRUPTION IN COMMUNICATIONS OR SERVICES, UNAVAILABILITY OR INOPERABILITY OF SERVICES, TECHNICAL MALFUNCTION, LOST DATA, OR LOST PROFITS, EVEN IF PROVIDER KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILTY OF OR COULD HAVE REASONABLY PREVENTED SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF

MISCELLANEOUS PROVISIONS

Controlling Law. The parties agree the laws of England will govern this Agreement and all matters arising out of or related to this Agreement. The parties submit to the jurisdiction of the courts of England.

Entire Agreement and Severability. This Agreement, including the Subscription Plan and Support Plan, as amended from time to time according to its terms, shall constitute the entire agreement between Customer and the Provider respecting the Site, the Web Services, the Support, the Data, and the Third Party Data described herein, and shall supersede all prior agreements, arrangements, representations or promises, whether oral or written, as to its subject matter. This Agreement may be amended only in a written agreement that is duly executed by authorized representatives of the parties.

Force Majeure. The Provider and their respective affiliates shall not be deemed to be in default of any provision hereof or be liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, civil or military authority, civil disturbance, war, terrorism, strikes, fires, other catastrophes, power or telecommunications failure or any other cause beyond its reasonable control.

Waiver. No waiver by either party of any default by the other in the performance of any provisions of this Agreement shall operate as a waiver of any continuing or future default, whether of a like or different character.

Severability. If any provision of this Agreement (or any portion thereof) shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement shall not in any way be affected or impaired thereby.

Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

Notice. The parties may give notice to each other via email, fax or certified mail. Notices sent to Provider should be directed to james@smoothbook.co. Notices sent to Customer will be sent to Customer at the email address provided during registration to use the Web Services.