A NEW DAY - 2023 in the mix with Explosive Truth, a new year, A NEW DAY
TERMS OF SERVICE
1. Introduction
These Terms of Service ("Terms"), including our Privacy Policy, govern your access to and use of our website: https://www.explosivetruth.com (herein referred to as the "Site"), it's content, or API Software service(s) (collectively the "Service(s)") provided by this site, (herein the "Company", “Provider”, "we", "our" or "us"). By accessing and using the Services, visitors, users, potential client or actual client (herein "Client", "you", "your", or "user") agree these Terms govern your access to the Site and license to use the Services provided therein. If you are using the Services on behalf of an organization or entity ("Organization"), you are agreeing to these Terms on behalf of that Organization and you represent and warrant that you have authority to bind the Organization to these Terms. In such cases, "you" and "your" refers to you and that Organization. In the event of any conflict between the Terms and any separate executed agreement with the Company, the Terms and conditions of the separate agreement will prevail and govern if signed by both parties.
2. Definitions
"Affiliate" means a legal entity controlling, controlled by, or under common Control with the Client which shall be considered equally, jointly and severally liable to all legal obligations of this Agreement. "Control" means possessing a 50% or greater interest in an entity or the right to direct the management of the entity. For purposes of subscription to Services, an Affiliate is each individual Client who must establish an account before using our Services.
"Aggregate Data" refers to numerical or non-numerical information that is (1) collected from multiple sources and/or on multiple measures, variables, or individuals and (2) compiled into data summaries or summary reports, typically for the purposes of reporting or statistical analysis—i.e., examining trends, making comparisons, or revealing information and insights that would not be observable when data elements are viewed in isolation. Company may aggregate submitted address information so that it no longer reflects or references an identifiable natural person for the purpose of creating statistical summaries, for benchmarking, and for use in research and development to create, refine, and improve Company products and services.
"Client" is any person, entity, visitor, user, subscriber, pre-existing client or potential client accessing and using our Services. (It includes any user, subscribers or affiliate with donated or free evaluation accounts).
"Client Data" means the information, and/or input data, including an address or any other Personal Data contained therein, in any form or media, that is (i) submitted or entered into the Company's cloud based system or Site by Client or on behalf of Client or its end users; (ii) accessed or used by Company in providing any Services to Client; or (iii) data and content collected, compiled, inferred, stored, cached, or derived directly or indirectly from any of the data and content described in subclauses (i) and (ii) herein.
"Content" or "Output Data" means Provider’s software, deliverables, postal data, authoritative address, geocodes or geo-location information, metadata, and databases included and embedded in Provider's proprietary software, or database(s) used to process, produce, and deliver Services owned, controlled, or licensed by Company or its respective Licensor.
"Data Privacy Laws" mean collectively any applicable data protection, privacy or similar laws applicable to the processing of personal data in the jurisdiction selected herein and/or applicable to the Personal Data processed as part of the Services, including, without limitation, the Health Insurance Portability and Accountability Act, as amended, ("HIPAA"), the Gramm-Leach-Bliley Act of 1999, as amended, the adoption of the California Consumer Privacy Act ("CCPA") and adherence to the general principles of the European Union General Data Protection Regulation, (EU) 2016/679.
“Derivative Works" means works that are based upon one or more pre-existing works, such as (a) for copyrighted or copyrightable material or Content: any translation, portrayal, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment, revision or other form in which such material or Content may be recast, transformed, or adapted; (b) for patentable or patented material: any improvement thereon; and (c) for material that is protected by trade secret: any new material derived from such existing trade secret material, including new material that may be protected by any of copyright, patent, and trade secret.
"Documentation" means written explanations of the intended functionality of the Services and the Site and other written material generally intended to guide the user of the Services in the installation, modification, execution, comprehension, or other use of the Site or other necessary software, including, but without limitation, user guides, training materials, worksheets, workbooks, implementation and reference materials, and other documentation, whether in printed or electronic form.
"Enhanced Data Privacy" also referred to as "Incognito mode" is an optional feature that Enterprise Clients may elect to purchase which prevents Client Data and or Personally Identifiable Information (PII) from ever being logged at the point of submission to Company's APIs. Client Data submissions are accessed only momentarily in Random Access Memory (RAM), just long enough to process and deliver results back to Client. Upon completion of such process, any residual Client Data in RAM is dumped or "garbage collected" and written over by subsequent transactions. Such processing methods render data deletion, destruction, correction, blocking, or exportation back to Client not feasible due to the nature of the transitory process.
"Intellectual Property Rights" means all right, title, and interest in and to, as applicable, any copyright, software, design, logo, trademark, service mark, patent, invention, trade secret, domain name, Confidential Information, know-how, technology, business name, trade name, trade dress, technical solutions, associated right to sue (past, present, and future), any other intellectual property rights whether existing at common law, applied for, registered or unregistered and all extensions, renewals, continuations, continuations-in-part, divisionals, reissues, re-examinations, and revivals therefor and existing anywhere in the world.
“Internal Business Purposes” means the usage of the Services solely by the Client for its own internal processes, operations and administration which may include for its own customers or end users but excludes: (i) direct monetary or commercial gain from the Content, Derivative Works, bundled or resulting products; and (ii) sale, external distribution or license of the Content, Derivative Works, bundled or resulting products whether or not for a fee; for the benefit of third-party entities outside of Client’s business organization. Internal Business Purposes also excludes any right to provide service bureau or other data processing services, or otherwise share or distribute the Services to any third party outside the Client’s organization unless for those Affiliates which are expressly contemplated in a Service Order and by this Agreement.
"Licensor(s)" means entities and organizations that supply Company updated resources and licenses to access authoritative and proprietary databases.
"Lookup(s)" means a submission of Client Data including but not limited to addresses, geocodes, postal codes, etc. by a Client or a Permitted User to be processed by Company's products or Service. Every individual data submission is counted as a single lookup. Client is responsible and agrees to pay for any Lookups performed on its account, even if unintended or accidental. (For example, if Client creates an automated API call to provider's International Address Verification API, and happens to have an unintended loop in its code causing "runaway" calls to be made to the API, Client will still be responsible to pay for each Lookup attempted).
"Parties" means Client and Company and "Party" means either of them individually.
"Payment Terms" are the conditions under which the Company will complete the sale to the Client. Details of the payment depend upon the Service plan that is purchased and are specified and set forth in the subscription process.
"Permitted User(s)" Client's employees, customers, suppliers, consultants, agents and (independent) contractors permitted to have access to and use of the Services and system for whom Client has created unique usernames, security keys, and passwords. Affiliates of Clients are not Permitted Users without establishing their own Client accounts or without the expressed consent of the Company.
"Personal Data" or "Personally Identifiable Information" means any information relating to an identified or identifiable natural person (an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person), or as that term (or similar variants) may otherwise be defined in applicable data protection, privacy, breach notification, or data security laws or regulations, including Protected Health Information ("PHI") under Health Insurance Portability and Accountability Act ("HIPAA") and any Electronic Protected Health Information ("ePHI").
"Platform", "Cloud-Based System" or "System" means Company's hardware and/or software used to provide Client access to an application hosted by Company, or software as a service method to deliver access to Company's platform or system, all provided on a subscription basis and accessible to Client via the Internet as described in the Service Order Form, including without limitation all third-party licensed technology, software, or systems and the Company's Documentation.
“Purchase Order” means a commercial document used by Client to request Provider to supply deliverables in return for payment and providing specifications and quantities. Purchase Order(s) are solely for Client’s convenience in record keeping. No terms, provisions, or conditions of any subsequent Purchase Order shall have any effect on the obligations of the Parties hereunder or otherwise modify this Agreement regardless of when executed.
"Services" means any and all electronic and programmed computer instructions used to provide the services, including without limitation, professional services, Support Services, and access to and data processing from the Platform or Client-Hosted Software provided by Company to Client. In connection with the Services, Company commits to the provisions of the Service Level Agreement.
"Support Services" means any maintenance or support provided by the Company in respect of its Services, Platform or Client-Hosted Software.
"Update" means a modification, correction or addition to the Platform or Client-Hosted Software or Documentation, including updates and enhancements that the Company makes generally available to its clients as part of Support Services without additional charge. The definition of "Update" excludes Upgrades.
"Upgrade" means an enhancement or additional feature to the Platform or Client-Hosted Software other than an Update which the Company does not make generally available to its clients as part of any Support Services, but rather is only made commercially available to clients subject to payment of a separate incremental license fee, or upgrade charge.
3. Your Use of the Services
You are authorized to access and use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations. We reserves the right to refine and change these Terms from time to time without prior notice to you. Our Services provide an ability for you to submit and compare your address, input data or "Client Data" with our Company's authoritative database and to receive updated Output Data results or "Content" via our API Services for Internal Business Purposes. Client Data you submit must be adequate and relevant but not excessive to location validation and verification purposes. The Site, its Content, and software are not available or licensed to competitors of the Company. Furthermore, by utilizing the Site or Services, you hereby certify that you are not a competitor of the Company and that you will not share or otherwise disclose the Site, Software, or Content with competing companies.
4. Use of International Address Verification API Product
Each and every address Lookup request that you submit to our International Address Verification API is counted as one used or purchased Lookup. We require that you keep a valid credit card listed on your account. You are responsible for any Lookups performed on your account, even if unintended or accidental. For example, if you create an automated API call and you happen to have an unintended loop in your code which causes "runaway" calls to be made to our International Address Verification API, you will still be responsible for each Lookup attempted. This could result in significant charges to your credit card. Please ensure that your code is correct prior to automating any calls to our API. Similar to our US Street Address API service, you will be able to choose a subscription plan that will accommodate your non-USPS address lookup needs.
5. Prohibited Uses of Our Software and Content
Uses of Provider’s Services and Content are not intended for personal or public emergency applications such as address location for safety requests typical of 911 emergency calls or critical services. In addition, the following are prohibited uses of our Software and Content and you agree not to directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, (this includes a prohibition on data mining, scraping, and other methods of extracting information from our Service based on input of contrived/generated addresses); (b) reproduce, modify, translate, or create Derivative Works of the Services; (c) rent, lease, distribute, sell, resell, the Services; (d) assign or otherwise transfer any rights to the Services; (e) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third-party (not including Permitted Users); (f) remove any proprietary notices from the Services; (g) publish, republish or disclose to third parties any copyrighted information derived from the Services without the Company's prior written consent; (h) create any link to the Site, frame or mirror the Content contained on, or accessible from, the Site; (i) use any Content, data or information including any Personal Data included within the Content, in violation of any rights of any third parties, including such rights arising under any applicable privacy laws; (j) impersonate any other person, or legal entity (including impersonating an employee of the Company whether actual or fictitious), or using false or misleading documents to obtain services or support inaccurate records or accounting practices; (k) circumvent or disable any security or other technological features or measures of the Services, or attempt to probe, scan or test the vulnerability of a network and or system or to breach security or authentication measures; (l) upload or provide for processing any information or materials that are illegal, defamatory, offensive, abusive, obscene, or that violate privacy or Intellectual Property Rights; (m) submit unnecessary personal information such as names, age, gender, race, genetic, health, social security or identification information etc.; (n) use the Services to harm, threaten or harass another person or organization; or (o) send, store or distribute any viruses, worms, Trojan horses, or other malware component harmful to the Site or System.
6. Privacy
We take your data privacy seriously. You can find information about how we collect, process, and use the data which you provide to us in our Privacy Policy. By using our Services, you consent to the collection and processing of such information. Common for all our data processing is that it is carried out with appropriate safeguards taken into account and in accordance with the fundamental principles in data protection legislation. Contact us if you need Enhanced Data Privacy or need us to enter into a Data Privacy Agreement (DPA) with you.
7. Data Privacy and Security
Under no circumstance shall Company be liable for any Client Data which is delayed, lost, altered, or intercepted during transmission across networks not owned or operated by Company, including, but not limited to, the internet and Client's local network. Client shall protect its permitted users' login names and passwords and other security credentials from access or use by unauthorized parties, and is solely responsible for its failure to do so.
8. Data Ownership
You retain all Intellectual Property and other ownership rights to your input data (herein "Client Data"). You agree to grant us a worldwide, non-exclusive, irrevocable, transferable, perpetual, royalty-free license (with the right to sublicense) to Aggregate Data, log, process, cleanse, modify, de-identify, publish, transmit, edit, translate, make derivatives, display, and distribute such data for fulfilling your intended purposes, providing and improving the quality of the Services to you and other users in accordance with the security settings on your subscription account. Any Content, or Output data that our Service provides back to you is a non-exclusively licensed product for you to use for a valid legal reason so long as the Output Data is not sold, shared nor redistributed, in whole or in part, whether for profit or not, in a manner which competes with our services. We reserve the right at all times to log, access, read, preserve and/or disclose any information that we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process, or governmental request; (ii) enforce the Terms, including investigation of potential violations; (iii) detect, prevent, or otherwise mitigate fraud, security, or other technical issues; (iv) respond to user support requests; or (v) protect the rights, property, or safety of ExplosiveTruth, company, website, its clients, users, or the public.
9. Your Account
All users and Clients (including those using our Evaluation or Free Trial accounts), must provide us accurate information and identification to subscribe and create an account. Your account gives you access to the Services, features, and functionalities that we establish and maintain from time to time at our sole discretion. You may not use another user's account without expressed permission and without prior consent from the Company.
10. Processing Speeds
Lookup processing speeds shall be limited to the per-second rate corresponding to the subscription plan as indicated on our Pricing Page. Any plans not listed on the Pricing Page, such as Legacy Standard Plans, shall be subject to the processing speed rate limits as indicated in a Renewal Approval letter or as indicated in a Client’s account dashboard.
Client Data submissions which are processed in excess of the subscribed plan’s corresponding per-second Lookup rate may require Client to purchase an Enhanced Enterprise-level license.
11. Private Security Credentials
Any and all private credentials and/or secret authentication tokens including passwords that you use to access the Site or our Software are personal to you. You should not share or disclose your private authentication information with anyone who you do not trust or is not a Permitted User. Disclosure of your security credentials to any third-party, including those within your organization, authorizes that third-party to act as an agent on your behalf. You are responsible for safeguarding your credentials, and you agree not to allow any third-party to access our Site, Software, and/or Content using your credentials, unless specifically granted herein. The Company recommends creating credentials that cannot be easily guessed. You agree to take sole responsibility for any activities or actions under your credentials, whether or not you have authorized such activities or actions. You will immediately notify the Company and change your credentials if any unauthorized use of your credentials is suspected.
12. Age Restrictions
The Company will only knowingly provide its services to parties that can lawfully enter into and form contracts under applicable law. The legal minimum age of a user may vary depending on laws in your jurisdiction. The Site, Software, and Content are not intended for children under the age of 13. If you are at least 13 but under the age of 18, use of our Site, Software, and Content is permissible only under the approval and supervision of a parent, legal guardian or an entity able to be bound by our terms of service.
13. Copyrights and Feedback
All rights, titles, and interests in and to the Service, Site, Content or Documentation (including but not limited to data, text, graphics, logos, images, video clips, software and other Intellectual Property Rights) will remain the exclusive property of Explosive Truth, website, company and its Licensors unless otherwise specified. The Service and Content is protected by copyright, trademark, and other laws of the United States and foreign countries. Any Content that is not the express property of the Company is used by permission of the copyright holder or Licensor. Nothing in the Terms gives you the right to use the Smarty or SmartyStreets name or any of the Company trademarks, logos, domain names, and other distinctive brand features. Any reproduction, modification, distribution, transmission, republication, display, or performance of the Content on this Site, unless otherwise granted, is strictly prohibited. Any feedback, comments, or suggestions ("Feedback") you may provide us regarding Smarty, or its Services in the course of this Agreement is entirely voluntary and you agree to let the Company use such Feedback in a legal manner without obligation to you.
14. USPS® Disclaimer and Copyright
The Company is a non-exclusive licensee of the United States Postal Service. The prices of our products and services are neither established, controlled, nor approved by the United States Postal Service. Advertising material is neither endorsed nor approved by the United States Postal Service. Portions of our software are copyrighted by the United States Postal Service. Clients accessing our Site acknowledge that USPS has rights to the licensed materials and licensed marks.
15. Reservation of Rights
The Company reserves all rights not expressly granted to Client herein and Client will not limit Company in any way from developing, using, licensing, distributing, modifying, or otherwise freely exploiting the Services, Platform, Client-Hosted Software, or Documentation or any Updates, Upgrades, modifications, enhancements, improvements or derivative works thereof, or permitting third-parties from so doing.
The Company reserves the right to investigate and prosecute violations of any of the above prohibited uses which may involve cooperation with law enforcement authorities. You acknowledge that the Company has no obligation to monitor your access to or use of the Site, Software, or Content, but has the right to do so to ensure your compliance with these Terms, to comply with applicable laws, or to comply with a court order or requirement of an administrative agency or other governmental body.
16. External Links
The Company may provide links on our Site to other websites that may or may not be affiliated with, under the control of, or otherwise maintained by our Company. The Company does not control third parties, nor their services, and you assume all liabilities in connection to such services. The Company does not endorse nor make any representations or warranties about third-party sites or any information, software, or other products or services found there.
17. Hyperlinks to the Site
You are granted a limited, non-exclusive right to create a "hypertext" link to our Site provided that such link does not portray the Company or any of its other products or services in a false, misleading, derogatory, or otherwise defamatory manner. This limited right may be revoked at any time, for any reason, whatsoever. You may not use, frame, or utilize framing techniques to enclose any Company trademark, logo, or trade name or other proprietary information found on our Site, the Content of any text or the layout/design of any page, or any form contained on a website page without the express written consent of the Company.
18. Publicity
Unless you opt out by contacting a marketing representative, you agree that Company may use and publish your Organization's name in its customer lists, lists of referrals for other customers, and in other promotional information, including, but not limited to, press releases, brochures, reports, letters, white papers, and electronic media such as e-mail or Web pages.
19. Term of Commencement
This Agreement shall commence on the date these terms are accepted by the Client through a click-through website subscription or an executed signature process and shall continue in intervals of one (1) month up to twelve (12) months periods according to the Service plan selected by the Client. Subscriptions shall automatically be renewed so as to allow uninterrupted Services to Client for successive time periods or upon exhaustion of allotted Lookups until such time termination is requested or required by either Party.
20. Fees and Payment Terms
Payment is due within 30 days of the invoice date. A late fee is charged 10 days after the invoice due date at 1.5%. If your organization requires payment terms longer than Net 30 please contact a sales representative. Date of remittance payment is based on the mailing (postmark) date. Failure to pay the invoice in full, including any late fees, will exclude the user from selecting invoicing as a future payment method. Company reserves the right to change Client’s payment method on file. Accounts whose invoices are over 45 days old may be subject to Service suspension and collections procedures.
21. Recurring Billing
Our Services are automatically billed to a credit card that you provide us in advance (or in accordance to other prearranged methods of payment that we agree upon). Access to our Services are contingent upon receipt of your initial payment and payment information. Clients may establish other subsequent automatic payments at a given interval—either monthly, annually, or according to usage that the Client establishes. Payment is due before subscription ends, so as to not disrupt continuity of service. For example, if before the end of the predetermined billing cycle you consume all of your purchased API lookups, your method of payment would be automatically charged to allow continuation of the Service. If recurring charges are due early, your subsequent billing dates will be reset based on that date. Recurring billing can be cancelled with twenty-four (24) hours notice by contacting our Customer Support. Any refund requests for recurring or automated charges must be made in strict compliance with the Company's established Refund Policy.
22. Chargebacks
You agree to contact the Company before disputing any charge against the method of payment specified, which is commonly referred to as a "chargeback". Chargebacks on credit cards or any other form of stop payment provided to the Company will be researched and disputed if, in the Company's reasonable opinion, the chargeback is not justified. You acknowledge and agree that if services have been performed by the Company, chargebacks are unlawful. Any chargeback will automatically invoke the following per-occurrence fees without exception. A $50 administration fee, a $25 chargeback fee, and a $50 recovery fee. These fees, along with any disputed charges, will result in a negative balance on your account which must be paid fully before services on the account can be reactivated. In the event of a chargeback, the Company may need to provide relevant information to a third-party for the purposes of recovering the debt or for the pursuit of civil or criminal proceedings.
23. Evaluation Period and Free Trial
If you subscribe for a free trial ("Trial Account") of one or more Services, use of such Services are governed by these Terms including any applicable privacy laws for a duration of the earlier of: (a) the "Evaluation Period"; (b) the start of any paid subscription for such Services; or (c) termination by Company at its sole discretion. If you do not sign up for a paid subscription at the expiration of the Evaluation Period, the Services may automatically terminate unless the Company at its sole discretion, agrees to extend the Evaluation Period. If the Company donates any free Trial Accounts, additional terms and conditions may be imposed upon registration and any such additional terms and conditions are incorporated into this Agreement by reference and shall be legally binding. If you subscribe to a free plan of 250 US Street Address API lookups per month, you are allowed to use the Services free of charge for a maximum of one year after which renewal extension, suspension or termination may occur at Company's sole discretion.
TRIAL ACCOUNTS MAY BE SUSPENDED, TERMINATED, OR DISCONTINUED AT ANY TIME AND FOR ANY REASON (OR NO REASON). THE COMPANY DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT (INCLUDING LIABILITY OTHERWISE PROVIDED FOR UNDER SECTION ENTITLED “LIMITATION OF LIABILITY” FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A TRIAL ACCOUNT, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO CLIENT DATA. ANY CONFIGURATIONS OR DATA ENTERED INTO A TRIAL ACCOUNT, AND ANY CUSTOMIZATIONS MADE TO A TRIAL ACCOUNT BY OR FOR CLIENT, MAY BE PERMANENTLY LOST OR DELETED IF THE TRIAL ACCOUNT IS SUSPENDED, TERMINATED, OR DISCONTINUED. ANY OBLIGATIONS BY THE COMPANY UNDER THIS AGREEMENT DO NOT APPLY TO TRIAL ACCOUNTS. FURTHERMORE, THE COMPANY RESERVES ALL RIGHTS TO PROTECT AND ENFORCE THE TERMS OF THIS AGREEMENT.
24. NO WARRANTY. Use at Your Own Risk
THE SITE, CONTENT, AND ACCOUNTS, INCLUDING TRIAL ACCOUNTS, AND SERVICES DELIVERED BY THE COMPANY ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND EITHER EXPRESSED OR IMPLIED. THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
WHILE TAKING MEASURES TO ENSURE REASONABLE ACCURACY, SECURITY, AND AVAILABILITY OF THE SOFTWARE, THE COMPANY MAKES NO WARRANTY THAT THE SITE, SOFTWARE, OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. THE COMPANY MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY DATA OR INFORMATION OBTAINED THROUGH THE SITE, SOFTWARE, OR CONTENT. YOUR ACCESS TO AND USE OF THE SITE, SOFTWARE, AND CONTENT IS AT YOUR OWN RISK. THE COMPANY WILL HAVE NO RESPONSIBILITY FOR ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SITE, SOFTWARE, OR CONTENT.
25. Suspension and Termination
If you violate any of our Terms of Services, your authorization to use the Site, Software, and Content, may automatically suspend or terminate. In the event of a termination due to your breach of our Terms, you agree that any fees paid for our services are non-refundable. This Agreement may be terminated by either Party: (i) if the other Party fails to observe or perform any material term or condition of this Agreement and does not cure such breach or failure within thirty (30) days after written, emailed, or direct notice by the other Party; or (ii) if the other Party makes a general assignment for the benefit of creditors or files a voluntary petition in bankruptcy or if a petition in bankruptcy is filed against such other Party and is not dismissed within thirty (30) days after the filing, or if a receiver or trustee is appointed for all or any part of the property or assets of such other Party. You may terminate this Agreement for any reason, or no reason at all, by providing Company with thirty (30) days prior written notice, however, any requests for refunds are subject to our Refund Policy. The Terms related to confidentiality, limitation of liability, indemnity, protection of Personal Information, dispute resolution, data ownership, any warranties offered herein, including this clause shall survive the termination or expiration of this Agreement.
26. Abuse Alert
REGARDLESS OF ANY RIGHT TO CURE BREACH PROVISION STATED WITHIN THIS AGREEMENT, THE COMPANY AND RESPECTIVE SUPPLIERS AND LICENSORS RESERVE THE RIGHT TO IMMEDIATELY SUSPEND AND/OR TERMINATE SERVICES TO CLIENTS THAT TRIGGER AN EMBEDDED ABUSE OR MISUSE DETECTION ALERT. SUCH ALERT INDICATES REVERSE ENGINEERING, DATA SOURCE SCRAPING, IMPROPER ACCESSING OR SHARING, OR VIOLATING USAGE OF PROPRIETARY DATA WHICH, IN GENERAL, CANNOT BE TRIGGERED INADVERTENTLY AND WHICH CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT. THE ALERT WILL SUBJECT CLIENT TO AN AUTOMATIC SUSPENSION OF ACCOUNT WHILE AN INVESTIGATION IS ENSUED. COMPANY WILL PROMPTLY NOTIFY CLIENT TO DETERMINE WHETHER A REINSTATEMENT OR TERMINATION OF SERVICES IS WARRANTED. IN THE EVENT OF AN AUTOMATIC TERMINATION DUE TO AN ABUSE ALERT, CLIENT AGREES TO MAKE PAYMENT OF ANY OUTSTANDING FEES DUE AND WAIVES ANY BREACH CLAIMS UNDER THIS AGREEMENT INCLUDING CLAIMS TO A REFUND FOR UNUSED LOOKUPS OR ANY OTHER VALUE IN CLIENT'S ACCOUNT.
27. Indemnity
Client agrees to defend, indemnify, and hold harmless Company, our affiliates, officers, directors, employees, suppliers, consultants, and agents from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys' fees) arising from or related to, as applicable: (a) Customer’s access to and use of the Services; (b) violation of these Terms by Client or its Authorized Users, as applicable; (c) infringement of any intellectual property or other right of any person or entity by Client; (d) the nature and content of all Client Data, and (e) the Client’s Software.
28. Limitation of Liability
The Company shall not be liable to Client for any direct, indirect, incidental, special, consequential, or punitive damages resulting from your access to or use of, or inability to access or use, the Site, Software, or Content, whether based on warranty, contract, tort (including negligence), or any other legal theory, whether or not the parties have been informed of the possibility of such damage. Except for cases of fraud, criminal conduct, or liabilities excluded or limited by applicable law, the Company's maximum aggregate liability arising from or in connection with this Agreement (including the Services or the subject matter of this Agreement) will be limited to, and shall not exceed the amount paid by Client pursuant to this Agreement in the twelve (12) month period preceding the event giving rise to the claim; and in no case shall the Company ever be liable to the Client or third-parties for any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data or website, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
29. Disclaimer of Liability -Emergency 911 Uses
Uses of all Provider Services, Content and/or other products such as Rooftop Geocoding or products otherwise communicated to Client are not intended for personal or public emergency applications such as address location for safety requests typical of 911 emergency calls or critical services (ie. a heart valve needing to be delivered to this hospital address for an operation) herein “Excluded Applications”. PROVIDER WILL NOT BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY FALSE, DELAYED, INACCURATE, INAPPROPRIATE OR INCOMPLETE CONTENT INFORMATION WHICH MAY CAUSE DAMAGES, INJURIES OR DEATH ARISING DIRECTLY OR INDIRECTLY FROM CLIENT’S USE OF OR INABILITY TO USE SUCH EXCLUDED APPLICATIONS.
IN NO EVENT SHALL PROVIDER BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, DEATH, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS CLAUSE AND AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE APPLICABLE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
30. No Right of Offset
Client may not offset any amounts to which it may be entitled under the terms of this Agreement against amounts otherwise payable to the Company under this Agreement. The foregoing will not constitute an election of remedies or otherwise limit Client or Company in any manner in the enforcement of any other remedies that may be available to it herewith.
31. Taxes
Company may charge and Client shall pay all applicable sales, use or value-added taxes ("Sales Taxes") that Company is legally obligated to charge for the Services, unless Client provides Company with a timely and valid tax exemption certificate (or other documentation as required by the exemption, including proof of self-assessment) authorized by the appropriate taxing authority.
32. Controlling Law and Jurisdiction
These Terms and any action related thereto (including taxation issues) will be governed by the laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the Laws of any jurisdiction other than those of the State of Utah. The exclusive jurisdiction and venue of any action arising under these Terms or related thereto will be the state and federal courts located in Utah County, State of Utah, and each of the parties hereto waives any objection to jurisdiction and venue in such courts. In any action to enforce this clause or this Agreement, the prevailing Party will be entitled to costs and reasonable attorneys' fees.
33. Purchase Orders
Purchase Orders, if applicable, are solely for Client’s convenience in record keeping. No terms, provisions, or conditions contained in any subsequent Purchase Order will have any effect on the obligations of the Parties hereunder or otherwise modify this Agreement regardless of when executed. Any associated terms and conditions referenced in a Purchase Order or similar documentation even if accepted and Services performed between the Parties shall be of no force and effect, and shall not, in any way, be deemed to amend, modify, supersede, alter or supplement this Agreement.
34. Dispute Resolution/Arbitration
Any disputes and claims relating to use of the Service or the application of these Terms shall be resolved as follows:
Exclusive Dispute Resolution Mechanism. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement or the breach, termination or invalidity thereof (each, a "Dispute"), under the provisions of this clause. The procedures set forth in this shall be the exclusive mechanism for resolving any Dispute that may arise from time to time and are the expressed conditions precedent to arbitration or litigation of the Dispute.
Negotiations. A Party shall send written notice to the other Party of any Dispute. The Parties shall first attempt in good faith to resolve any Dispute set forth in the notice by negotiation and consultation between themselves, including not fewer than three (3) negotiation sessions attended by a Director level or higher for both Client and Company. For purposes of clarification, the Party sending a notice of an Escalation to Director level or higher shall send such notices in compliance with the Notice section herein.
Escalation. If the Parties cannot resolve any Dispute under this clause within thirty (30) days after a written notice, either Party may seek resolution by initiating arbitration in Utah County, Utah administered by Judicial Arbitration and Mediation Service (JAMS). BINDING ARBITRATION MEANS THAT YOU WAIVE ANY RIGHTS TO A JURY TRIAL. Judgment rendered shall be binding and any award entered by JAMS arbitrator may be pursued and enforced by any court having legal jurisdiction. The non-prevailing Party shall bear all costs, expenses, and reasonable attorneys' fees for arbitration.
Legally Binding. In the arbitration proceeding, the arbitrator has no authority to make errors of law, and any award may be challenged if the arbitrator does so. Otherwise, the arbitrator's decision is final and binding on all parties and may be enforced in any federal or state court that has jurisdiction. Neither you nor the Company shall be entitled to join or consolidate claims in arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity. Accordingly, you agree that the JAMS Class Action Procedures do not apply to our arbitration.
Updated: August 9, 2022
1. Introduction
These Terms of Service ("Terms"), including our Privacy Policy, govern your access to and use of our website: https://www.explosivetruth.com (herein referred to as the "Site"), it's content, or API Software service(s) (collectively the "Service(s)") provided by this site, (herein the "Company", “Provider”, "we", "our" or "us"). By accessing and using the Services, visitors, users, potential client or actual client (herein "Client", "you", "your", or "user") agree these Terms govern your access to the Site and license to use the Services provided therein. If you are using the Services on behalf of an organization or entity ("Organization"), you are agreeing to these Terms on behalf of that Organization and you represent and warrant that you have authority to bind the Organization to these Terms. In such cases, "you" and "your" refers to you and that Organization. In the event of any conflict between the Terms and any separate executed agreement with the Company, the Terms and conditions of the separate agreement will prevail and govern if signed by both parties.
2. Definitions
"Affiliate" means a legal entity controlling, controlled by, or under common Control with the Client which shall be considered equally, jointly and severally liable to all legal obligations of this Agreement. "Control" means possessing a 50% or greater interest in an entity or the right to direct the management of the entity. For purposes of subscription to Services, an Affiliate is each individual Client who must establish an account before using our Services.
"Aggregate Data" refers to numerical or non-numerical information that is (1) collected from multiple sources and/or on multiple measures, variables, or individuals and (2) compiled into data summaries or summary reports, typically for the purposes of reporting or statistical analysis—i.e., examining trends, making comparisons, or revealing information and insights that would not be observable when data elements are viewed in isolation. Company may aggregate submitted address information so that it no longer reflects or references an identifiable natural person for the purpose of creating statistical summaries, for benchmarking, and for use in research and development to create, refine, and improve Company products and services.
"Client" is any person, entity, visitor, user, subscriber, pre-existing client or potential client accessing and using our Services. (It includes any user, subscribers or affiliate with donated or free evaluation accounts).
"Client Data" means the information, and/or input data, including an address or any other Personal Data contained therein, in any form or media, that is (i) submitted or entered into the Company's cloud based system or Site by Client or on behalf of Client or its end users; (ii) accessed or used by Company in providing any Services to Client; or (iii) data and content collected, compiled, inferred, stored, cached, or derived directly or indirectly from any of the data and content described in subclauses (i) and (ii) herein.
"Content" or "Output Data" means Provider’s software, deliverables, postal data, authoritative address, geocodes or geo-location information, metadata, and databases included and embedded in Provider's proprietary software, or database(s) used to process, produce, and deliver Services owned, controlled, or licensed by Company or its respective Licensor.
"Data Privacy Laws" mean collectively any applicable data protection, privacy or similar laws applicable to the processing of personal data in the jurisdiction selected herein and/or applicable to the Personal Data processed as part of the Services, including, without limitation, the Health Insurance Portability and Accountability Act, as amended, ("HIPAA"), the Gramm-Leach-Bliley Act of 1999, as amended, the adoption of the California Consumer Privacy Act ("CCPA") and adherence to the general principles of the European Union General Data Protection Regulation, (EU) 2016/679.
“Derivative Works" means works that are based upon one or more pre-existing works, such as (a) for copyrighted or copyrightable material or Content: any translation, portrayal, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment, revision or other form in which such material or Content may be recast, transformed, or adapted; (b) for patentable or patented material: any improvement thereon; and (c) for material that is protected by trade secret: any new material derived from such existing trade secret material, including new material that may be protected by any of copyright, patent, and trade secret.
"Documentation" means written explanations of the intended functionality of the Services and the Site and other written material generally intended to guide the user of the Services in the installation, modification, execution, comprehension, or other use of the Site or other necessary software, including, but without limitation, user guides, training materials, worksheets, workbooks, implementation and reference materials, and other documentation, whether in printed or electronic form.
"Enhanced Data Privacy" also referred to as "Incognito mode" is an optional feature that Enterprise Clients may elect to purchase which prevents Client Data and or Personally Identifiable Information (PII) from ever being logged at the point of submission to Company's APIs. Client Data submissions are accessed only momentarily in Random Access Memory (RAM), just long enough to process and deliver results back to Client. Upon completion of such process, any residual Client Data in RAM is dumped or "garbage collected" and written over by subsequent transactions. Such processing methods render data deletion, destruction, correction, blocking, or exportation back to Client not feasible due to the nature of the transitory process.
"Intellectual Property Rights" means all right, title, and interest in and to, as applicable, any copyright, software, design, logo, trademark, service mark, patent, invention, trade secret, domain name, Confidential Information, know-how, technology, business name, trade name, trade dress, technical solutions, associated right to sue (past, present, and future), any other intellectual property rights whether existing at common law, applied for, registered or unregistered and all extensions, renewals, continuations, continuations-in-part, divisionals, reissues, re-examinations, and revivals therefor and existing anywhere in the world.
“Internal Business Purposes” means the usage of the Services solely by the Client for its own internal processes, operations and administration which may include for its own customers or end users but excludes: (i) direct monetary or commercial gain from the Content, Derivative Works, bundled or resulting products; and (ii) sale, external distribution or license of the Content, Derivative Works, bundled or resulting products whether or not for a fee; for the benefit of third-party entities outside of Client’s business organization. Internal Business Purposes also excludes any right to provide service bureau or other data processing services, or otherwise share or distribute the Services to any third party outside the Client’s organization unless for those Affiliates which are expressly contemplated in a Service Order and by this Agreement.
"Licensor(s)" means entities and organizations that supply Company updated resources and licenses to access authoritative and proprietary databases.
"Lookup(s)" means a submission of Client Data including but not limited to addresses, geocodes, postal codes, etc. by a Client or a Permitted User to be processed by Company's products or Service. Every individual data submission is counted as a single lookup. Client is responsible and agrees to pay for any Lookups performed on its account, even if unintended or accidental. (For example, if Client creates an automated API call to provider's International Address Verification API, and happens to have an unintended loop in its code causing "runaway" calls to be made to the API, Client will still be responsible to pay for each Lookup attempted).
"Parties" means Client and Company and "Party" means either of them individually.
"Payment Terms" are the conditions under which the Company will complete the sale to the Client. Details of the payment depend upon the Service plan that is purchased and are specified and set forth in the subscription process.
"Permitted User(s)" Client's employees, customers, suppliers, consultants, agents and (independent) contractors permitted to have access to and use of the Services and system for whom Client has created unique usernames, security keys, and passwords. Affiliates of Clients are not Permitted Users without establishing their own Client accounts or without the expressed consent of the Company.
"Personal Data" or "Personally Identifiable Information" means any information relating to an identified or identifiable natural person (an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person), or as that term (or similar variants) may otherwise be defined in applicable data protection, privacy, breach notification, or data security laws or regulations, including Protected Health Information ("PHI") under Health Insurance Portability and Accountability Act ("HIPAA") and any Electronic Protected Health Information ("ePHI").
"Platform", "Cloud-Based System" or "System" means Company's hardware and/or software used to provide Client access to an application hosted by Company, or software as a service method to deliver access to Company's platform or system, all provided on a subscription basis and accessible to Client via the Internet as described in the Service Order Form, including without limitation all third-party licensed technology, software, or systems and the Company's Documentation.
“Purchase Order” means a commercial document used by Client to request Provider to supply deliverables in return for payment and providing specifications and quantities. Purchase Order(s) are solely for Client’s convenience in record keeping. No terms, provisions, or conditions of any subsequent Purchase Order shall have any effect on the obligations of the Parties hereunder or otherwise modify this Agreement regardless of when executed.
"Services" means any and all electronic and programmed computer instructions used to provide the services, including without limitation, professional services, Support Services, and access to and data processing from the Platform or Client-Hosted Software provided by Company to Client. In connection with the Services, Company commits to the provisions of the Service Level Agreement.
"Support Services" means any maintenance or support provided by the Company in respect of its Services, Platform or Client-Hosted Software.
"Update" means a modification, correction or addition to the Platform or Client-Hosted Software or Documentation, including updates and enhancements that the Company makes generally available to its clients as part of Support Services without additional charge. The definition of "Update" excludes Upgrades.
"Upgrade" means an enhancement or additional feature to the Platform or Client-Hosted Software other than an Update which the Company does not make generally available to its clients as part of any Support Services, but rather is only made commercially available to clients subject to payment of a separate incremental license fee, or upgrade charge.
3. Your Use of the Services
You are authorized to access and use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules, and regulations. We reserves the right to refine and change these Terms from time to time without prior notice to you. Our Services provide an ability for you to submit and compare your address, input data or "Client Data" with our Company's authoritative database and to receive updated Output Data results or "Content" via our API Services for Internal Business Purposes. Client Data you submit must be adequate and relevant but not excessive to location validation and verification purposes. The Site, its Content, and software are not available or licensed to competitors of the Company. Furthermore, by utilizing the Site or Services, you hereby certify that you are not a competitor of the Company and that you will not share or otherwise disclose the Site, Software, or Content with competing companies.
4. Use of International Address Verification API Product
Each and every address Lookup request that you submit to our International Address Verification API is counted as one used or purchased Lookup. We require that you keep a valid credit card listed on your account. You are responsible for any Lookups performed on your account, even if unintended or accidental. For example, if you create an automated API call and you happen to have an unintended loop in your code which causes "runaway" calls to be made to our International Address Verification API, you will still be responsible for each Lookup attempted. This could result in significant charges to your credit card. Please ensure that your code is correct prior to automating any calls to our API. Similar to our US Street Address API service, you will be able to choose a subscription plan that will accommodate your non-USPS address lookup needs.
5. Prohibited Uses of Our Software and Content
Uses of Provider’s Services and Content are not intended for personal or public emergency applications such as address location for safety requests typical of 911 emergency calls or critical services. In addition, the following are prohibited uses of our Software and Content and you agree not to directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services, (this includes a prohibition on data mining, scraping, and other methods of extracting information from our Service based on input of contrived/generated addresses); (b) reproduce, modify, translate, or create Derivative Works of the Services; (c) rent, lease, distribute, sell, resell, the Services; (d) assign or otherwise transfer any rights to the Services; (e) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third-party (not including Permitted Users); (f) remove any proprietary notices from the Services; (g) publish, republish or disclose to third parties any copyrighted information derived from the Services without the Company's prior written consent; (h) create any link to the Site, frame or mirror the Content contained on, or accessible from, the Site; (i) use any Content, data or information including any Personal Data included within the Content, in violation of any rights of any third parties, including such rights arising under any applicable privacy laws; (j) impersonate any other person, or legal entity (including impersonating an employee of the Company whether actual or fictitious), or using false or misleading documents to obtain services or support inaccurate records or accounting practices; (k) circumvent or disable any security or other technological features or measures of the Services, or attempt to probe, scan or test the vulnerability of a network and or system or to breach security or authentication measures; (l) upload or provide for processing any information or materials that are illegal, defamatory, offensive, abusive, obscene, or that violate privacy or Intellectual Property Rights; (m) submit unnecessary personal information such as names, age, gender, race, genetic, health, social security or identification information etc.; (n) use the Services to harm, threaten or harass another person or organization; or (o) send, store or distribute any viruses, worms, Trojan horses, or other malware component harmful to the Site or System.
6. Privacy
We take your data privacy seriously. You can find information about how we collect, process, and use the data which you provide to us in our Privacy Policy. By using our Services, you consent to the collection and processing of such information. Common for all our data processing is that it is carried out with appropriate safeguards taken into account and in accordance with the fundamental principles in data protection legislation. Contact us if you need Enhanced Data Privacy or need us to enter into a Data Privacy Agreement (DPA) with you.
7. Data Privacy and Security
Under no circumstance shall Company be liable for any Client Data which is delayed, lost, altered, or intercepted during transmission across networks not owned or operated by Company, including, but not limited to, the internet and Client's local network. Client shall protect its permitted users' login names and passwords and other security credentials from access or use by unauthorized parties, and is solely responsible for its failure to do so.
8. Data Ownership
You retain all Intellectual Property and other ownership rights to your input data (herein "Client Data"). You agree to grant us a worldwide, non-exclusive, irrevocable, transferable, perpetual, royalty-free license (with the right to sublicense) to Aggregate Data, log, process, cleanse, modify, de-identify, publish, transmit, edit, translate, make derivatives, display, and distribute such data for fulfilling your intended purposes, providing and improving the quality of the Services to you and other users in accordance with the security settings on your subscription account. Any Content, or Output data that our Service provides back to you is a non-exclusively licensed product for you to use for a valid legal reason so long as the Output Data is not sold, shared nor redistributed, in whole or in part, whether for profit or not, in a manner which competes with our services. We reserve the right at all times to log, access, read, preserve and/or disclose any information that we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process, or governmental request; (ii) enforce the Terms, including investigation of potential violations; (iii) detect, prevent, or otherwise mitigate fraud, security, or other technical issues; (iv) respond to user support requests; or (v) protect the rights, property, or safety of ExplosiveTruth, company, website, its clients, users, or the public.
9. Your Account
All users and Clients (including those using our Evaluation or Free Trial accounts), must provide us accurate information and identification to subscribe and create an account. Your account gives you access to the Services, features, and functionalities that we establish and maintain from time to time at our sole discretion. You may not use another user's account without expressed permission and without prior consent from the Company.
10. Processing Speeds
Lookup processing speeds shall be limited to the per-second rate corresponding to the subscription plan as indicated on our Pricing Page. Any plans not listed on the Pricing Page, such as Legacy Standard Plans, shall be subject to the processing speed rate limits as indicated in a Renewal Approval letter or as indicated in a Client’s account dashboard.
Client Data submissions which are processed in excess of the subscribed plan’s corresponding per-second Lookup rate may require Client to purchase an Enhanced Enterprise-level license.
11. Private Security Credentials
Any and all private credentials and/or secret authentication tokens including passwords that you use to access the Site or our Software are personal to you. You should not share or disclose your private authentication information with anyone who you do not trust or is not a Permitted User. Disclosure of your security credentials to any third-party, including those within your organization, authorizes that third-party to act as an agent on your behalf. You are responsible for safeguarding your credentials, and you agree not to allow any third-party to access our Site, Software, and/or Content using your credentials, unless specifically granted herein. The Company recommends creating credentials that cannot be easily guessed. You agree to take sole responsibility for any activities or actions under your credentials, whether or not you have authorized such activities or actions. You will immediately notify the Company and change your credentials if any unauthorized use of your credentials is suspected.
12. Age Restrictions
The Company will only knowingly provide its services to parties that can lawfully enter into and form contracts under applicable law. The legal minimum age of a user may vary depending on laws in your jurisdiction. The Site, Software, and Content are not intended for children under the age of 13. If you are at least 13 but under the age of 18, use of our Site, Software, and Content is permissible only under the approval and supervision of a parent, legal guardian or an entity able to be bound by our terms of service.
13. Copyrights and Feedback
All rights, titles, and interests in and to the Service, Site, Content or Documentation (including but not limited to data, text, graphics, logos, images, video clips, software and other Intellectual Property Rights) will remain the exclusive property of Explosive Truth, website, company and its Licensors unless otherwise specified. The Service and Content is protected by copyright, trademark, and other laws of the United States and foreign countries. Any Content that is not the express property of the Company is used by permission of the copyright holder or Licensor. Nothing in the Terms gives you the right to use the Smarty or SmartyStreets name or any of the Company trademarks, logos, domain names, and other distinctive brand features. Any reproduction, modification, distribution, transmission, republication, display, or performance of the Content on this Site, unless otherwise granted, is strictly prohibited. Any feedback, comments, or suggestions ("Feedback") you may provide us regarding Smarty, or its Services in the course of this Agreement is entirely voluntary and you agree to let the Company use such Feedback in a legal manner without obligation to you.
14. USPS® Disclaimer and Copyright
The Company is a non-exclusive licensee of the United States Postal Service. The prices of our products and services are neither established, controlled, nor approved by the United States Postal Service. Advertising material is neither endorsed nor approved by the United States Postal Service. Portions of our software are copyrighted by the United States Postal Service. Clients accessing our Site acknowledge that USPS has rights to the licensed materials and licensed marks.
15. Reservation of Rights
The Company reserves all rights not expressly granted to Client herein and Client will not limit Company in any way from developing, using, licensing, distributing, modifying, or otherwise freely exploiting the Services, Platform, Client-Hosted Software, or Documentation or any Updates, Upgrades, modifications, enhancements, improvements or derivative works thereof, or permitting third-parties from so doing.
The Company reserves the right to investigate and prosecute violations of any of the above prohibited uses which may involve cooperation with law enforcement authorities. You acknowledge that the Company has no obligation to monitor your access to or use of the Site, Software, or Content, but has the right to do so to ensure your compliance with these Terms, to comply with applicable laws, or to comply with a court order or requirement of an administrative agency or other governmental body.
16. External Links
The Company may provide links on our Site to other websites that may or may not be affiliated with, under the control of, or otherwise maintained by our Company. The Company does not control third parties, nor their services, and you assume all liabilities in connection to such services. The Company does not endorse nor make any representations or warranties about third-party sites or any information, software, or other products or services found there.
17. Hyperlinks to the Site
You are granted a limited, non-exclusive right to create a "hypertext" link to our Site provided that such link does not portray the Company or any of its other products or services in a false, misleading, derogatory, or otherwise defamatory manner. This limited right may be revoked at any time, for any reason, whatsoever. You may not use, frame, or utilize framing techniques to enclose any Company trademark, logo, or trade name or other proprietary information found on our Site, the Content of any text or the layout/design of any page, or any form contained on a website page without the express written consent of the Company.
18. Publicity
Unless you opt out by contacting a marketing representative, you agree that Company may use and publish your Organization's name in its customer lists, lists of referrals for other customers, and in other promotional information, including, but not limited to, press releases, brochures, reports, letters, white papers, and electronic media such as e-mail or Web pages.
19. Term of Commencement
This Agreement shall commence on the date these terms are accepted by the Client through a click-through website subscription or an executed signature process and shall continue in intervals of one (1) month up to twelve (12) months periods according to the Service plan selected by the Client. Subscriptions shall automatically be renewed so as to allow uninterrupted Services to Client for successive time periods or upon exhaustion of allotted Lookups until such time termination is requested or required by either Party.
20. Fees and Payment Terms
Payment is due within 30 days of the invoice date. A late fee is charged 10 days after the invoice due date at 1.5%. If your organization requires payment terms longer than Net 30 please contact a sales representative. Date of remittance payment is based on the mailing (postmark) date. Failure to pay the invoice in full, including any late fees, will exclude the user from selecting invoicing as a future payment method. Company reserves the right to change Client’s payment method on file. Accounts whose invoices are over 45 days old may be subject to Service suspension and collections procedures.
21. Recurring Billing
Our Services are automatically billed to a credit card that you provide us in advance (or in accordance to other prearranged methods of payment that we agree upon). Access to our Services are contingent upon receipt of your initial payment and payment information. Clients may establish other subsequent automatic payments at a given interval—either monthly, annually, or according to usage that the Client establishes. Payment is due before subscription ends, so as to not disrupt continuity of service. For example, if before the end of the predetermined billing cycle you consume all of your purchased API lookups, your method of payment would be automatically charged to allow continuation of the Service. If recurring charges are due early, your subsequent billing dates will be reset based on that date. Recurring billing can be cancelled with twenty-four (24) hours notice by contacting our Customer Support. Any refund requests for recurring or automated charges must be made in strict compliance with the Company's established Refund Policy.
22. Chargebacks
You agree to contact the Company before disputing any charge against the method of payment specified, which is commonly referred to as a "chargeback". Chargebacks on credit cards or any other form of stop payment provided to the Company will be researched and disputed if, in the Company's reasonable opinion, the chargeback is not justified. You acknowledge and agree that if services have been performed by the Company, chargebacks are unlawful. Any chargeback will automatically invoke the following per-occurrence fees without exception. A $50 administration fee, a $25 chargeback fee, and a $50 recovery fee. These fees, along with any disputed charges, will result in a negative balance on your account which must be paid fully before services on the account can be reactivated. In the event of a chargeback, the Company may need to provide relevant information to a third-party for the purposes of recovering the debt or for the pursuit of civil or criminal proceedings.
23. Evaluation Period and Free Trial
If you subscribe for a free trial ("Trial Account") of one or more Services, use of such Services are governed by these Terms including any applicable privacy laws for a duration of the earlier of: (a) the "Evaluation Period"; (b) the start of any paid subscription for such Services; or (c) termination by Company at its sole discretion. If you do not sign up for a paid subscription at the expiration of the Evaluation Period, the Services may automatically terminate unless the Company at its sole discretion, agrees to extend the Evaluation Period. If the Company donates any free Trial Accounts, additional terms and conditions may be imposed upon registration and any such additional terms and conditions are incorporated into this Agreement by reference and shall be legally binding. If you subscribe to a free plan of 250 US Street Address API lookups per month, you are allowed to use the Services free of charge for a maximum of one year after which renewal extension, suspension or termination may occur at Company's sole discretion.
TRIAL ACCOUNTS MAY BE SUSPENDED, TERMINATED, OR DISCONTINUED AT ANY TIME AND FOR ANY REASON (OR NO REASON). THE COMPANY DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT (INCLUDING LIABILITY OTHERWISE PROVIDED FOR UNDER SECTION ENTITLED “LIMITATION OF LIABILITY” FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A TRIAL ACCOUNT, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO CLIENT DATA. ANY CONFIGURATIONS OR DATA ENTERED INTO A TRIAL ACCOUNT, AND ANY CUSTOMIZATIONS MADE TO A TRIAL ACCOUNT BY OR FOR CLIENT, MAY BE PERMANENTLY LOST OR DELETED IF THE TRIAL ACCOUNT IS SUSPENDED, TERMINATED, OR DISCONTINUED. ANY OBLIGATIONS BY THE COMPANY UNDER THIS AGREEMENT DO NOT APPLY TO TRIAL ACCOUNTS. FURTHERMORE, THE COMPANY RESERVES ALL RIGHTS TO PROTECT AND ENFORCE THE TERMS OF THIS AGREEMENT.
24. NO WARRANTY. Use at Your Own Risk
THE SITE, CONTENT, AND ACCOUNTS, INCLUDING TRIAL ACCOUNTS, AND SERVICES DELIVERED BY THE COMPANY ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY WARRANTY OF ANY KIND EITHER EXPRESSED OR IMPLIED. THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
WHILE TAKING MEASURES TO ENSURE REASONABLE ACCURACY, SECURITY, AND AVAILABILITY OF THE SOFTWARE, THE COMPANY MAKES NO WARRANTY THAT THE SITE, SOFTWARE, OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. THE COMPANY MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY DATA OR INFORMATION OBTAINED THROUGH THE SITE, SOFTWARE, OR CONTENT. YOUR ACCESS TO AND USE OF THE SITE, SOFTWARE, AND CONTENT IS AT YOUR OWN RISK. THE COMPANY WILL HAVE NO RESPONSIBILITY FOR ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SITE, SOFTWARE, OR CONTENT.
25. Suspension and Termination
If you violate any of our Terms of Services, your authorization to use the Site, Software, and Content, may automatically suspend or terminate. In the event of a termination due to your breach of our Terms, you agree that any fees paid for our services are non-refundable. This Agreement may be terminated by either Party: (i) if the other Party fails to observe or perform any material term or condition of this Agreement and does not cure such breach or failure within thirty (30) days after written, emailed, or direct notice by the other Party; or (ii) if the other Party makes a general assignment for the benefit of creditors or files a voluntary petition in bankruptcy or if a petition in bankruptcy is filed against such other Party and is not dismissed within thirty (30) days after the filing, or if a receiver or trustee is appointed for all or any part of the property or assets of such other Party. You may terminate this Agreement for any reason, or no reason at all, by providing Company with thirty (30) days prior written notice, however, any requests for refunds are subject to our Refund Policy. The Terms related to confidentiality, limitation of liability, indemnity, protection of Personal Information, dispute resolution, data ownership, any warranties offered herein, including this clause shall survive the termination or expiration of this Agreement.
26. Abuse Alert
REGARDLESS OF ANY RIGHT TO CURE BREACH PROVISION STATED WITHIN THIS AGREEMENT, THE COMPANY AND RESPECTIVE SUPPLIERS AND LICENSORS RESERVE THE RIGHT TO IMMEDIATELY SUSPEND AND/OR TERMINATE SERVICES TO CLIENTS THAT TRIGGER AN EMBEDDED ABUSE OR MISUSE DETECTION ALERT. SUCH ALERT INDICATES REVERSE ENGINEERING, DATA SOURCE SCRAPING, IMPROPER ACCESSING OR SHARING, OR VIOLATING USAGE OF PROPRIETARY DATA WHICH, IN GENERAL, CANNOT BE TRIGGERED INADVERTENTLY AND WHICH CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT. THE ALERT WILL SUBJECT CLIENT TO AN AUTOMATIC SUSPENSION OF ACCOUNT WHILE AN INVESTIGATION IS ENSUED. COMPANY WILL PROMPTLY NOTIFY CLIENT TO DETERMINE WHETHER A REINSTATEMENT OR TERMINATION OF SERVICES IS WARRANTED. IN THE EVENT OF AN AUTOMATIC TERMINATION DUE TO AN ABUSE ALERT, CLIENT AGREES TO MAKE PAYMENT OF ANY OUTSTANDING FEES DUE AND WAIVES ANY BREACH CLAIMS UNDER THIS AGREEMENT INCLUDING CLAIMS TO A REFUND FOR UNUSED LOOKUPS OR ANY OTHER VALUE IN CLIENT'S ACCOUNT.
27. Indemnity
Client agrees to defend, indemnify, and hold harmless Company, our affiliates, officers, directors, employees, suppliers, consultants, and agents from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys' fees) arising from or related to, as applicable: (a) Customer’s access to and use of the Services; (b) violation of these Terms by Client or its Authorized Users, as applicable; (c) infringement of any intellectual property or other right of any person or entity by Client; (d) the nature and content of all Client Data, and (e) the Client’s Software.
28. Limitation of Liability
The Company shall not be liable to Client for any direct, indirect, incidental, special, consequential, or punitive damages resulting from your access to or use of, or inability to access or use, the Site, Software, or Content, whether based on warranty, contract, tort (including negligence), or any other legal theory, whether or not the parties have been informed of the possibility of such damage. Except for cases of fraud, criminal conduct, or liabilities excluded or limited by applicable law, the Company's maximum aggregate liability arising from or in connection with this Agreement (including the Services or the subject matter of this Agreement) will be limited to, and shall not exceed the amount paid by Client pursuant to this Agreement in the twelve (12) month period preceding the event giving rise to the claim; and in no case shall the Company ever be liable to the Client or third-parties for any loss of profit (including anticipated profit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data or website, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
29. Disclaimer of Liability -Emergency 911 Uses
Uses of all Provider Services, Content and/or other products such as Rooftop Geocoding or products otherwise communicated to Client are not intended for personal or public emergency applications such as address location for safety requests typical of 911 emergency calls or critical services (ie. a heart valve needing to be delivered to this hospital address for an operation) herein “Excluded Applications”. PROVIDER WILL NOT BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY FALSE, DELAYED, INACCURATE, INAPPROPRIATE OR INCOMPLETE CONTENT INFORMATION WHICH MAY CAUSE DAMAGES, INJURIES OR DEATH ARISING DIRECTLY OR INDIRECTLY FROM CLIENT’S USE OF OR INABILITY TO USE SUCH EXCLUDED APPLICATIONS.
IN NO EVENT SHALL PROVIDER BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, DEATH, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS CLAUSE AND AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE APPLICABLE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
30. No Right of Offset
Client may not offset any amounts to which it may be entitled under the terms of this Agreement against amounts otherwise payable to the Company under this Agreement. The foregoing will not constitute an election of remedies or otherwise limit Client or Company in any manner in the enforcement of any other remedies that may be available to it herewith.
31. Taxes
Company may charge and Client shall pay all applicable sales, use or value-added taxes ("Sales Taxes") that Company is legally obligated to charge for the Services, unless Client provides Company with a timely and valid tax exemption certificate (or other documentation as required by the exemption, including proof of self-assessment) authorized by the appropriate taxing authority.
32. Controlling Law and Jurisdiction
These Terms and any action related thereto (including taxation issues) will be governed by the laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the Laws of any jurisdiction other than those of the State of Utah. The exclusive jurisdiction and venue of any action arising under these Terms or related thereto will be the state and federal courts located in Utah County, State of Utah, and each of the parties hereto waives any objection to jurisdiction and venue in such courts. In any action to enforce this clause or this Agreement, the prevailing Party will be entitled to costs and reasonable attorneys' fees.
33. Purchase Orders
Purchase Orders, if applicable, are solely for Client’s convenience in record keeping. No terms, provisions, or conditions contained in any subsequent Purchase Order will have any effect on the obligations of the Parties hereunder or otherwise modify this Agreement regardless of when executed. Any associated terms and conditions referenced in a Purchase Order or similar documentation even if accepted and Services performed between the Parties shall be of no force and effect, and shall not, in any way, be deemed to amend, modify, supersede, alter or supplement this Agreement.
34. Dispute Resolution/Arbitration
Any disputes and claims relating to use of the Service or the application of these Terms shall be resolved as follows:
Exclusive Dispute Resolution Mechanism. The Parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement or the breach, termination or invalidity thereof (each, a "Dispute"), under the provisions of this clause. The procedures set forth in this shall be the exclusive mechanism for resolving any Dispute that may arise from time to time and are the expressed conditions precedent to arbitration or litigation of the Dispute.
Negotiations. A Party shall send written notice to the other Party of any Dispute. The Parties shall first attempt in good faith to resolve any Dispute set forth in the notice by negotiation and consultation between themselves, including not fewer than three (3) negotiation sessions attended by a Director level or higher for both Client and Company. For purposes of clarification, the Party sending a notice of an Escalation to Director level or higher shall send such notices in compliance with the Notice section herein.
Escalation. If the Parties cannot resolve any Dispute under this clause within thirty (30) days after a written notice, either Party may seek resolution by initiating arbitration in Utah County, Utah administered by Judicial Arbitration and Mediation Service (JAMS). BINDING ARBITRATION MEANS THAT YOU WAIVE ANY RIGHTS TO A JURY TRIAL. Judgment rendered shall be binding and any award entered by JAMS arbitrator may be pursued and enforced by any court having legal jurisdiction. The non-prevailing Party shall bear all costs, expenses, and reasonable attorneys' fees for arbitration.
Legally Binding. In the arbitration proceeding, the arbitrator has no authority to make errors of law, and any award may be challenged if the arbitrator does so. Otherwise, the arbitrator's decision is final and binding on all parties and may be enforced in any federal or state court that has jurisdiction. Neither you nor the Company shall be entitled to join or consolidate claims in arbitration by or against other individuals or entities, or arbitrate any claim as a representative member of a class or in a private attorney general capacity. Accordingly, you agree that the JAMS Class Action Procedures do not apply to our arbitration.
Updated: August 9, 2022
