SmartCSM TERMS AND CONDITIONS OF PLATFORM USE

UPDATED: 090617

PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY ACCESSING OR USING SMARTCSM’S PLATFORM, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE SMARTCSM’S PLATFORM.

These terms and conditions of use (“Platform Terms”) apply to your (“Company”) access to, and use of, the Platform of SmartCSM, Inc. (“SmartCSM”) that allows you collect, add, view and manage data for your building’s utilities via mobile, tablet and PC devices (the “Platform”). These Platform Terms do not alter in any way the terms or conditions of any other signed agreement you may have with SmartCSM, or its subsidiaries or affiliates, for products, services or otherwise. If you are using the Platform on behalf of any entity, you represent and warrant that you are authorized to accept these Platform Terms on such entity’s behalf, and that such entity agrees to indemnify you and SmartCSM for violations of these Terms. The services contained on or provided in connection with the Site, the Platform, or the SmartCSM Materials shall be collectively considered the “Services.”

To the full extent permitted by applicable law, SmartCSM reserves the right to change or modify any of the terms and conditions contained in the Platform Terms or any policy or guideline of the Platform, at any time and in its sole discretion by providing notice the Platform Terms have been modified. Such notice may be provided by sending an email, by posting a notice on SmartCSM’s proprietary website located at www.SmartCSM.com (the “Site”), by posting the revised Platform Terms on the Site and revising the date at the top of these Platform Terms or by such other form of notice as determined by SmartCSM. Your continued use of the Platform following the posting of the revised Platform Terms or other notice of such changes will constitute your acceptance of such changes or modifications if you fail to notify SmartCSM of any objections. Otherwise, any changes or modification will be effective within thirty (30) days of the notice of the revisions on the Site unless you notify SmartCSM within such thirty (30) days that you do not agree to the changes and stop using the Platform. Therefore, you should review these Platform Terms whenever you access the Site and at least every thirty (30) days to make sure that you understand the terms and conditions that will apply to your use of the Platforms.

If you have any question regarding the use of the Platform, please refer first to the Frequently Asked Questions (https://www.SmartCSM.com/faq/ ) on the Site. All other questions or comments about the Platform or its contents should be directed to support@SmartCSM.com .

1. Privacy Policy

Please refer to our Privacy Policy ( https://www.SmartCSM.com/privacy) for information on how SmartCSM collects, uses and discloses personally identifiable information from end users. SmartCSM will not sell, license, transmit, or disclose user personal information for marketing purposes.

2. Copyright and Limited License

Unless otherwise indicated on the Site, the Site, the Platform, and all content and other materials on the Site and the Platform, including, without limitation, SmartCSM’s logo, and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, the “SmartCSM Materials”) are the proprietary property of SmartCSM or its licensors or users and are protected by U.S. and international copyright laws.

You are granted a limited, non-sub licensable license to access and use the Platform and electronically copy (except where prohibited without a license) and print to hard copy portions of the SmartCSM Materials for your informational, non-commercial and business use only. Such license is subject to these Platform Terms and does not include: (a) any resale of the Platform or the SmartCSM Materials therein; (b) the distribution, public performance or public display of any SmartCSM Materials except as expressly provided in these Platform Terms; (c) modifying or otherwise making any derivative uses of the Platform and the SmartCSM Materials, or any portion thereof; (d) use of any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of the Platform, the SmartCSM Materials or any information contained therein, except as expressly permitted on the Platform; or (f) any use of the Platform or the SmartCSM Materials other than for its intended purpose. Any use of the Platform or the SmartCSM Materials other than as specifically authorized herein, without the prior written permission of SmartCSM, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Platform Terms shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.

3. Payment

To maintain an account on SmartCSM you are required to have a form of payment on file if you are paying annually. If paying in advance for three years you may do so through Credit Card, Automatic Debit or Check and payment is due upon receipt of invoice. A credit card on file for account is still required should you need to add services to your account. Lack of payment for account beyond 60-day notice would result in the closing of account.

4. Repeat Infringer Policy

In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, SmartCSM has adopted a policy of
terminating, in appropriate circumstances and at SmartCSM’s sole discretion, subscribers or account holders who are deemed to be repeat infringers. SmartCSM may also at its sole discretion limit access to the Platform and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

5. Copyright Complaints

If you believe that anything on the Platform infringes upon any copyright which you own or control you may file a notification of such infringement with our Designated Agent as set forth below.

  • Name of Agent Designated to Receive Notification of Claimed Infringement: Eugene Kovshilovsky
  • Full Address of Designated Agent to Which Notification Should be Sent: SmartCSM, 3521 Lomita Blvd, Suite 101 Torrance, CA 90505
  • Telephone Number of Designated Agent: (888) 396-1116
  • E-Mail Address of Designated Agent: copyright@SmartCSM.com

Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you may be liable for any damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.

6. Trademarks

SmartCSM acknowledges that Company asserts the copyright ownership in all copyrighted or copyrightable works, marks, or data provided or created by Company. Nothing in this Agreement shall be deemed an assignment or transfer of Company ownership rights in Company materials provided to SmartCSM for use on the Platform or Services. SmartCSM is granted the right to use Company logo in connection with its representation of the relationship with Company in publicity, website, internet, digital and non-digital marketing means to the public.

“SmartCSM,” SmartCSM’s logos and any other SmartCSM product or service name or slogan contained in the Platform are trademarks of SmartCSM, and may not be copied, imitated or used, in whole or in part, without the prior written permission of SmartCSM or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “SmartCSM” or any other name, trademark or product or service name of SmartCSM without our prior written permission. In addition, the look and feel of the Platform, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of SmartCSM and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Platform are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by us.

7. Submissions

In the event that features, enhancements, or improvements are made to SmartCSM products and services, the Site, the Platform, SmartCSM or SmartCSM’s product or services as the result of your questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information, that are provided by you in the form of email or other submissions to SmartCSM (“Suggestions”), such Suggestions shall be deemed non-confidential and shall become the sole property of SmartCSM. SmartCSM shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these materials for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

8. Content and Conduct

The Platform will provide you with the opportunity to map your utilities, bring them online, collect and measure data (“Content”). You are solely responsible for your use of these features and use them at your own risk. You agree not to knowingly post, upload to, transmit, distribute, store, create or otherwise publish through the Platform any of the following:

  1. Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, false, misleading, fraudulent or otherwise legally objectionable;
  2. Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or
    that would otherwise create liability or violate any local, state, national or international law, including, without limitation,
    the regulations of the U.S. Securities and Exchange Commission or any rules of a securities exchange such as the New
    York Stock Exchange, the American Stock Exchange or the NASDAQ;
  3. Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party. By posting any Content, you represent and certify that you have the lawful right to distribute and reproduce such Content;
  4. Content that impersonates any person or entity or otherwise misrepresents your affiliation with a person or entity;
  5. Any unsolicited: promotions, political campaigning, advertising or solicitations;
  6. Private information from any third party that is not your data, including, without limitation, addresses, phone numbers,
    email addresses, Social Security numbers and credit card numbers;
  7. Viruses, corrupted data or other harmful, disruptive or destructive files; and
  8. Content that, in the reasonable judgment of SmartCSM, is objectionable or which restricts or inhibits any other person
    from using or enjoying the Platform or the Site, or which may expose SmartCSM or its users to any harm or liability of
    any type.

You further agree, the extent permitted by applicable law, that you are solely responsible for your conduct while using the
Platform, and you agree that you will not do any of the following in connection with the Platform, the Site, or its users:

  1. Use the Platform in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully
    enjoying the Platform or that could damage, disable, overburden or impair the functioning of the Platform in any
    manner;
  2. Impersonate or post on behalf or any person or entity or otherwise misrepresent your affiliation with a person or entity;
  3. Cheat or utilize unauthorized exploits in connection with the Platform;
  4. Stalk, intimidate, threaten, or otherwise harass or cause discomfort to other users;
  5. Send distribute or post spam, unsolicited commercial electronic communications, chain letters, or pyramid schemes;
  6. Harvest or otherwise collect information about end users, including email addresses, without their consent;
  7. Use the Platform or any SmartCSM Materials for any illegal or unauthorized purpose or engage in, encourage, or
    promote any illegal activity, or any activity that violates these Platform Terms; or
  8. Circumvent or attempt to circumvent any filtering, security measures or other features SmartCSM may from time to time adopt to protect the Site, the Platform, its users or third parties.

SmartCSM takes no responsibility and assumes no liability for any Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, or for any user conduct, nor is SmartCSM liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Your use of the Platform’s messaging services is at your own risk. Enforcement of the Content or conduct rules set forth in these Platform Terms is solely at SmartCSM’s discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Platform will not contain any content that is prohibited by such rules.  As a provider of interactive services, SmartCSM is not liable for any statements, representations or Content provided by its users in any public forum, website, message or other communication. Although SmartCSM has no obligation to screen, edit or monitor any of the Content posted in or related to any campaign, SmartCSM reserves the right, and has absolute discretion, to remove, screen or edit any Content posted or stored on the Platform at any time and for any reason without notice, and you are solely responsible for creating backup copies of and replacing any Content you post or store on the Platform at your sole cost and expense. Any use of the Platform, in violation of the foregoing violates these Platform Terms and may result in, among other things, termination or suspension of your rights to use the Platform and any services incorporated into the Platform.

You own all Content that you post to the Platform. You represent and certify that (a) you own and control all of the rights to the Content that you post or you otherwise have the right to post such Content to the Platform; (b) the Content is accurate and not misleading; and (c) use and posting of the Content you supply does not violate these Platform Terms and will not violate any rights of or cause injury to any person or entity. Solely for the purposes of utilization of the Platform and facilitation of Services, if you post Content to the Platform, unless indicated otherwise, you grant SmartCSM and its affiliates a nonexclusive, royalty-free, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content throughout the world in any media on or in connection with the Platform and the promotion thereof including without limitation the right to use your name, likeness, or identity. You grant SmartCSM and its affiliates and sub-licensees the right to use the name that you submit in connection with such content in connection with the Platform and the promotion thereof, if we choose. You understand and agree that the use of your or other users’ name, likeness, or identity in connection with various features on the Platform does not imply any endorsement of such feature or of the Platform of the SmartCSM unless explicitly stated otherwise.

9. Registration Data; Account Security

In consideration of your use of the Platform, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site or the Platform (“Registration Data”); (b) maintain the security of your password and identification; (c) maintain and promptly update the Registration Data, and any other information you provide to SmartCSM, to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information you provide to SmartCSM.

10. Export Restrictions

Any software and all underlying information and technology downloaded or viewed from the Site or the Platform (collectively the “Software or Technical Data”) by you may be subject to U.S. export controls, including the Export Administration Act (50 U.S.C. Appx. §§ 2401 et seq.) and the Export Administration Regulations (50 C.F.R. Parts 730-774), and may be subject to export or import regulations in other countries. You are responsible for complying with all trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the Software or Technical Data to any country, or to any person, entity, or end-user subject to U.S. export controls, including without limitation persons or entities listed on the U.S. Department of Commerce Bureau of Export Administration's Denied Parties List and the U.S. Department of Treasury’s Specially Designated Nationals. You further represent and warrant that no U.S. federal agency has suspended, revoked, or denied your export privileges.

11. Indemnification

You agree to defend and hold harmless SmartCSM, its independent contractors, service providers and consultants, and their respective directors, employees and agents (the “SmartCSM Indemnitees”) from and against any claims, actions, and lawsuits, and indemnify the SmartCSM Indemnitees for all damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) arising out of or related to any Content you post, store or otherwise transmit on or through the Platform or your use of the Services, including without limitation any actual or threatened suit, demand or claim made against SmartCSM and/or its independent contractors, service providers, employees, directors or consultants, arising out of or relating to the Content, your conduct, your violation of these Platform Terms or your violation of the rights of any third party.

12. Disclaimer

EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY SmartCSM, THE SITE, THE PLATFORM, THE SmartCSM MATERIALS AND THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. SmartCSM DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE PLATFORM AND THE SERVICES, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN. SmartCSM DOES NOT REPRESENT OR WARRANT THAT MATERIALS IN THE PLATFORM OR THE SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. SmartCSM DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR ITS SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

SmartCSM IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO DONATIONS, PRICING, TEXT OR PHOTOGRAPHY. WHILE SmartCSM ATTEMPTS TO MAKE YOUR ACCESS AND USE OF THE PLATFORM AND THE SERVICES SAFE, SmartCSM CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.

SmartCSM reserves the right to change any and all content contained in the Platform and to modify, suspend or discontinue the Platform or any Services offered through the Platform or any features or functionality of the Platform or the Services at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by SmartCSM.

SmartCSM is a service provider. SmartCSM does manage the various utilities established on the Platform. Direct management of building utilities is the sole responsibility of the Company.

13. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (A) IN NO EVENT SHALL SmartCSM, ITS DIRECTORS, MEMBERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE PLATFORM, THE SERVICES, THE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY USER ON ANY INFORMATION OBTAINED FROM SmartCSM, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SmartCSM’s RECORDS, PROGRAMS OR SERVICES; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SmartCSM, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE PLATFORM OR THE SERVICES OR TO THESE PLATFORM TERMS EXCEED ANY COMPENSATION YOU PAY, IF ANY, TO SmartCSM FOR ACCESS TO OR USE OF THE PLATFORM.

14. Applicable Law and Venue

These Platform Terms and your use of the Platform shall be governed by and construed in accordance with the laws of the State of California, applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these Platform Terms shall be filed only in the state and federal courts located in Los Angeles County, California and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these Platform Terms.

15. Term and Termination

Term. This Agreement shall become effective upon the Effective Date of the Agreement for a term of one year, unless otherwise agreed, and will auto renew for successive one-year terms until terminated as set forth below.

Termination. Company may choose not to renew this agreement beyond the initial 1-year term by providing notice at any time at least 60 days prior to renewal date and at any time prior to three-year renewal term by speaking directly with a SmartCSM representative. Company can reach a representative during normal business hours, M-F 9am-5pm PST, by (888) 396-1116 and speak with a representative. Except as otherwise provided herein, there are no refunds for any amounts paid if cancelled without cause. Either party may terminate this Agreement immediately upon written notice if the other party should become bankrupt or enter into liquidation proceedings. In case of material breach hereunder, either party has the right to terminate this Agreement immediately after written notice to the other party specifying the breach if the breach has not been cured within thirty (30) days after receipt of written notice specifying such breach. Provided, however, that SmartCSM may suspend or terminate this Agreement immediately if, in SmartCSM’s discretion, such action is required to meet the requirements or demands of a Vendor, an Operator, or a government agency. On termination of this Agreement those provisions of this Agreement capable of surviving termination shall continue in full force and effect. Any such termination shall only occur if the issue has not been cured within thirty (30) days after receipt of written notice specifying such issue. On termination of this Agreement those provisions of this Agreement capable of surviving termination shall continue in full force and effect. In the event of termination of this Agreement, SmartCSM shall make available to Company the Company’s data in a portable, non-proprietary format, for a period of at least ninety (90) days after termination notice.

Notwithstanding any of these Platform Terms, SmartCSM reserves the right, without notice and in its sole discretion, to terminate your license to use the Platform, and to block or prevent future your access to and use of the Site. In such case, SmartCSM shall, within thirty (30) days of termination, refund the annual Service Fee on a pro-rata basis to Company.

16. Severability

If any provision of these Platform Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Platform Terms and shall not affect the validity and enforceability of any remaining provisions.

17. Questions & Contact Information

Questions or comments about the Platform may be directed to SmartCSM at the email address support@SmartCSM.com or by
calling us at (888) 396-1116.