Throughout this Agreement, we may use certain words or phrases, and it is important that you understand the meaning of them. The list is not all-encompassing and no definition should be considered binding to the point that it renders this Agreement nonsensical:
Agreement means these Terms of Service;
Smith Metal Works refers to our company, known as Smith Metal Works, Inc.; our Site; our Service or a combination of all or some of the preceding definitions, depending on the context of the word;
Service refers collectively and/or individually, as the case may be, to the SaaS services that we provide through our Site, any other services we provide, as well as our Site itself;
Site refers to our website, www.Smith Metal Works.com;
User refers to registered, unregistered, paid, and unpaid users of our Service, and without limiting the generality of the foregoing, includes and general visitors to our Site;
You refers to you, the person who is entering into this Agreement with Smith Metal Works.
3. Description of Service
Smith Metal Works is a SaaS (Software as a Service) tool used to collect and analyze web data. Our software is made available online and without requiring the purchase of a physical copy in order to use it.
In order to use our Service, you must meet a number of conditions, including but not limited to:
You must not be in violation of any embargoes, export controls, or other laws of the United States or other countries having jurisdiction over this Agreement, Smith Metal Works, and yourself. For example, if the Office of Foreign Assets Control prohibits conducting financial transactions with nationals, residents, or banks of your country, you must not use our Service.
You must be the minimum age required to enter into a contract in the area in which you reside, and, in any event, must not be less than 18 years of age.
You must, if signing up on behalf of an organization (such as a partnership, corporation, limited liability company, etc.), be authorized by that organization to create their account, and you agree that you are binding them to this Agreement and undertaking to indemnify Smith Metal Works for any breaches caused by that organization (without limitation on our right to obtain a remedy directly from the organization in conjunction with or as an alternative to your indemnification).
You must provide us with personal information, payment information, and other information that we deem necessary to provide you with our Service.
5. Nature of Service
Smith Metal Works believes that its Service is useful for product managers, designers, support teams, and others. However, it is ultimately your duty to determine whether our Service is right for you. You agree to release us from any liability for any losses which occur as the result of the use of our Service.
6. Rules of Use
In addition to meeting the above eligibility criteria for using our Service, you must not:
Violate the laws of the United States, its states, or any foreign political entity having jurisdiction over this Agreement, whether or not the foreign political entity is a country or a subdivision (such as a state or province) or municipality (such as a city, town, county, or region) of a foreign country.
Post or send anything violent, threatening, pornographic, racist, hateful, or otherwise objectionable according to the opinion of Smith Metal Works or its delegates.
Infringe on anyone’s intellectual property rights, defame anyone, impersonate anyone, or otherwise violate the rights of a third party.
Hack, crack, phish, SQL inject, or otherwise compromise the security or integrity of the Smith Metal Works Site, Service, or its Users’ computers.
Do anything else which could bring Smith Metal Works into disrepute or violate the rights of Smith Metal Works or any other person.
Smith Metal Works reserves the right to review information posted by Users to ensure that it complies with this or any other section of this Agreement, and to amend it, edit it, deleted it, or otherwise control such information in order to bring it into compliance with this Agreement.
7. Payment & Refunds
Payment can be made by credit card. All prices, unless otherwise stated, are listed in United States dollars.
Smith Metal Works is offered on a subscription basis. We will bill your credit card at the times and according to the rates and terms which are published on our Site from time to time, which are hereby incorporated into this Agreement by reference. You may cancel your Service at any time, however you will not be refunded for any subscription period which has already commenced.
If Smith Metal Works cancels your Service as a result of your violation of this Agreement or any other applicable law or legal rights, or to prevent the real threat of such a breach occurring, you shall not be entitled to a refund. If Smith Metal Works cancels your Service without cause, we shall be liable to refund you on a pro rata basis, and that shall be the extent of our liability for any cancellation without cause.
8. Chargebacks and Credit Card Cancellations
If a User conducts a chargeback rather than using our Forum of Dispute procedure described further below, Smith Metal Works shall be entitled to recover the full amount of the chargeback, as well as any of its fees, disbursements, or other costs or expenses involved in recovering that amount.
If a credit card is cancelled or declined, we may, but are not obligated to, inform you of the problem and give you a chance to fix the issue before deleting your data. We reserve the absolute right, however, to immediately delete any of your information and cancel your access to our Service in such instances.
9. Software as a Service
Smith Metal Works is offered as licensed software. By subscribing to Smith Metal Works, you are paying for one copy of our software, according to any additional terms we publish in relation to that subscription plan, which are hereby incorporated by reference. You must not attempt to reverse engineer, resell, or otherwise copy, tamper with, or distribute the software that we provide. We may cancel our license at any time, and any refunds, if any, will be made according to this Agreement.
10. Server Downtime and Maintenance
Our servers may be unavailable as the result of planned or unplanned downtime, for reasons including technical issues, legal compliance, security actions, business decisions, or any other cause. We may attempt to inform you if such downtime is planned, but we are under no obligation to do so. You agree that we are not liable for the unavailability of our Service.
11. Our Copyright
You agree not to copy, distribute, display, disseminate, or otherwise reproduce any of the information on the Site without receiving our prior written permission, unless it is in relation to a project which you are authorized to work on.
12. Your Copyright
Smith Metal Works must be assured that it has the right to store the content that is collected and posted to its Site by its Users. Such content may include, but is not limited to, photographs, videos, text, audio, usage data and other materials. Whenever submitting content to our website, you agree that you are granting us a non-exclusive, universal, perpetual, irrevocable, sublicensable, commercial and non-commercial right to use the data for the purpose of providing you with our Service. If you cancel your access to our Service, we may endeavor to delete the data (it is to our advantage to preserve storage space), but we cannot provide any assurances how long such a process will take, or if it will be completely effective. You warrant to us that you have the right to grant us this right over the content, and that you will indemnify us for any loss resulting from a breach of this warranty and defend us against claims regarding the same.
Smith Metal Works is a trademark used by us, Smith Metal Works, Inc., to uniquely identify our Site, Service, and business. You agree not to use our trade dress, or copy the look and feel of our website or its design, without our prior written consent. You agree that this paragraph goes beyond the governing law on intellectual property law, and includes prohibitions on any competition that violates the provisions of this paragraph, including starting your own competing service, whether it competes directly or indirectly.
14. Revocation of Consent
We may revoke our consent for your use of our intellectual property, or any other permission granted to you under this Agreement, at any time. You agree that if we so request, you must take immediate action to remove any usage of our intellectual property that you may have engaged in, even if it would cause a loss to you.
15. Copyright & Trademark Infringement
We take copyright infringement very seriously, and we have registered a Copyright Agent with the United States Copyright Office, which limits our liability under the Digital Millennium Copyright Act. If you believe that your copyright has been infringed, please send us a message which contains:
The name of the party whose copyright has been infringed, if different from your name.
The name and description of the work that is being infringed.
The location on our website of the infringing copy.
A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
You must sign this notification electronically and send it to our Copyright Agent at Smith Metal Works.
Although U.S. law does not provide for a similar procedure for trademark infringement, we recommend that you send us similar information to that above in regards to any allegation of trademark infringement, and we will address it as soon as practicable.
16. Communications Decency Act
Similar to the DMCA provisions above, United States law—specifically Section 230 of the Communications Decency Act—creates a defense for us for the actions of third parties in regards to any defamatory content posted on our website. Although we are not liable for defamatory words posted on our Site by our Users even if given notice, we do prohibit defamation under this Agreement and we may, if we believe the situation warrants it, take action against the offending User. Please notify us at team@Smith Metal Works.com if any of our Users have posted anything that you believe is defamatory.
17. Representations & Warranties
WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE MERCHANTABILITY OF OUR SERVICE OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU AGREE THAT YOU ARE RELEASING US FROM ANY LIABILITY THAT WE MAY OTHERWISE HAVE TO YOU IN RELATION TO OR ARISING FROM THIS AGREEMENT OR OUR SERVICES, FOR REASONS INCLUDING, BUT NOT LIMITED TO, FAILURE OF OUR SERVICE, NEGLIGENCE, OR ANY OTHER TORT. TO THE EXTENT THAT APPLICABLE LAW RESTRICTS THIS RELEASE OF LIABILITY, YOU AGREE THAT WE ARE ONLY LIABLE TO YOU FOR THE MINIMUM AMOUNT OF DAMAGES THAT THE LAW RESTRICTS OUR LIABILITY TO, IF SUCH A MINIMUM EXISTS.
YOU AGREE THAT WE ARE NOT RESPONSIBLE IN ANY WAY FOR DAMAGES CAUSED BY THIRD PARTIES WHO MAY USE OUR SERVICES, INCLUDING BUT NOT LIMITED TO PEOPLE WHO COMMIT INTELLECTUAL PROPERTY INFRINGEMENT, DEFAMATION, TORTIOUS INTERFERENCE WITH ECONOMIC RELATIONS, OR ANY OTHER ACTIONABLE CONDUCT TOWARDS YOU.
WE ARE NOT RESPONSIBLE FOR ANY LOSSES INCURRED AS THE RESULT OF YOUR DECISION TO USE OUR SERVICE. YOU ARE RESPONSIBILITY FOR DETERMINING THE SUITABILITY OF OUR SERVICE FOR YOUR PURPOSES.
WE ARE NOT RESPONSIBLE FOR ANY FAILURE ON THE PART OF A PAYMENT PROCESSOR, INCLUDING YOUR CREDIT CARD COMPANY, TO DIRECT PAYMENTS TO THE CORRECT DESTINATION, OR ANY ACTIONS ON THEIR PART IN PLACING A HOLD ON YOUR FUNDS.
WE ARE NOT LIABLE FOR ANY FAILURE OF THE GOODS OR SERVICES OF OUR COMPANY OR A THIRD PARTY, INCLUDING ANY FAILURES OR DISRUPTIONS, UNTIMELY DELIVERY, SCHEDULED OR UNSCHEDULED, INTENTIONAL OR UNINTENTIONAL, ON OUR WEBSITE WHICH PREVENT ACCESS TO OUR WEBSITE TEMPORARILY OR PERMANENTLY.
THE PROVISION OF OUR SERVICE TO YOU IS CONTINGENT ON YOUR AGREEMENT WITH THIS AND ALL OTHER SECTIONS OF THIS AGREEMENT. NOTHING IN THE PROVISIONS OF THIS “REPRESENTATIONS & WARRANTIES” SECTION SHALL BE CONSTRUED TO LIMIT THE GENERALITY OF THE FIRST PARAGRAPH OF THIS SECTION.
For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.
You agree to indemnify and hold us harmless for any claims by you or any third party which may arise from or relate to this Agreement or the provision of our service to you, including any damages caused by your use of our Site or acceptance of the offers contained on it. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim, and you shall be liable for the damages as though we had proceeded with a trial.
YOU (ON YOUR OWN BEHALF AND ON BEHALF OF ANY PERSON OR ENTITY AUTHORIZED BY YOU TO USE THE SERVICES) COVENANT NOT TO SUE OR MAKE OR ASSERT AGAINST Smith Metal Works ANY CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT WITH RESPECT TO THE SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT.
19. Choice of Law
This Agreement shall be governed by the laws in force in the State of Georgia. The offer and acceptance of this contract are deemed to have occurred in the State of Georgia.
20. Forum of Dispute
You agree that any dispute arising from or relating to this Agreement will be heard solely by a court of competent jurisdiction in the State of Georgia. Specifically, where the subject matter of a dispute is eligible for it, you agree that any disputes shall be heard solely within the lowest court of competent jurisdiction in the State of Georgia (Small Claims Court).
If a dispute claims multiple claims and one or more of those claims would be eligible to be heard by the Small Claims Court, you agree not to bring the other claims against us and to instead proceed within the Small Claims Court.
If you would be entitled in a dispute to an amount exceeding the monetary jurisdiction of the Small Claims Court, you agree to waive your right to collect any damages in excess of the monetary jurisdiction and instead still bring your claim within the Small Claims Court.
You agree that if a dispute is eligible to be heard in Small Claims Court but you would be entitled to an additional or alternative remedy in a higher court, such as injunctive relief, you will waive your right to that remedy and still bring the dispute within the Small Claims Court. If you bring a dispute in a manner other than in accordance with this section, you agree that we may move to have it dismissed, and that you will be responsible for our reasonable attorneys’ fees, court costs, and disbursements in doing so.
You agree that the unsuccessful party in any dispute arising from or relating to this Agreement will be responsible for the reimbursement of the successful party’s reasonable attorneys’ fees, court costs, and disbursements.
21. Force Majeure
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, unavailability of payment processors, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement are deemed to conflict with each other’s operation, Smith Metal Works shall have the sole right to elect which provision remains in force.
Smith Metal Works reserves all rights afforded to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
24. Termination & Cancellation
We may terminate your account or access as well as access to our Site and Service to you at our discretion without explanation, though we will strive to provide a timely explanation in most cases. Our liability for refunding you, if you have paid anything to us, will be limited to the amount you paid for goods or services which have not yet been and will not be delivered, except in cases where the termination or cancellation was due to your breach of this Agreement, in which case you agree that we are not required to provide any refund or other compensation whatsoever.
Under no circumstances, including termination or cancellation of our Service to you, will we be liable for any losses related to actions of other Users.
25. Assignment of Rights
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion.
We may amend this Agreement from time to time. When we amend this Agreement, we will change this page. You must read this page each time you access our Service and, if it has changed, you agree to any amendments through your continued use of our Service.
27. Ontario Users and Residents
Pursuant to Ontario Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Smith Metal Works must be addressed to our agent for notice and sent via certified mail to that agent.