Last Updated: May 14, 2018
IMPORTANT! PLEASE READ THIS AGREEMENT CAREFULLY AS IT MAY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS.
Smartcat means either Smartcat Platform Inc., a legal entity registered in the U.S.A. or Smartcat Platform Limited, a legal entity registered in the Republic of Cyprus (depending on where you are registered or residing). If you are registered and/or reside in Europe, Asia (excluding Japan) or Africa, then you are entering into this Agreement with Smartcat Platform Limited, a legal entity registered in the Republic of Cyprus. If you are registered and/or reside in North America, South America or Japan, then you are entering into this Agreement with Smartcat Platform Inc., a legal entity registered in the USA.
IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST IMMEDIATELY STOP ACCESSING AND/OR USING THE SMARTCAT PLATFORM.
We reserve the right at all times to discontinue or modify any part of this Agreement as we deem necessary. When we revise this Agreement, we change the “Last updated” date above and post the amended and restated Agreement at www.smartcat.ai. We shall notify you by e-mail or via the SMARTCAT PLATFORM about the amended and restated Agreement to ensure that you stay informed of any such amendments and restatements. Your use of the SMARTCAT PLATFORM after 30 calendar days of such notification shall mean your acceptance of the amended and restated Agreement, unless you accepted them otherwise earlier.
We provide an online platform that is made available at the Smartcat’s website located at https://www.Smartcat.ai and means a technology platform for translation workflow automation which allows a registered customer to automate translation processes and make use of technologies such as (but not limited to) Translation Memory (as further defined at https://www.Smartcat.ai), Glossary Management (as further defined at https://www.Smartcat.ai), QA checks, etc., as well as tools for searching, selecting, hiring and managing relations with language professionals, including, but not limited to translators (collectively the above stated definition is hereinafter referred to as the “SMARTCAT PLATFORM”). SMARTCAT PLATFORM also enables a customer like you who wishes to have some content translated (a “Customer”) to enter into transaction (“Service Task”) with a supplier, being either an individual freelancer or a legal entity, that registered on the PLATFORM and wishes to translate such content (a “Supplier”).
For the purposes of this Agreement a User means a Customer or a Supplier (depending on the context) registered on the SMARTCAT PLATFORM.
To access and use the SMARTCAT PLATFORM, you must be a legal entity or an individual of eighteen (18) years of age or older who can enter into legally binding contracts. To become a User, you must accept this Agreement. You may not access and use the SMARTCAT PLATFORM if you are a competitor of ours or if we have previously banned you from accessing and using the SMARTCAT PLATFORM and/or closed your account on the SMARTCAT PLATFORM. We reserve the right, in our sole discretion, to refuse, suspend, or terminate access to the SMARTCAT PLATFORM pursuant to Section 10.
You must create an account and provide certain information about yourself in order to access and use the SMARTCAT PLATFORM. You agree to provide true, accurate and complete information as prompted by the registration form and all forms you access on the SMARTCAT PLATFORM, and to update this information to maintain its truthfulness, accuracy and completeness. You are responsible for maintaining confidentiality of your account password. You are also responsible for all activities that occur in connection with your account. You warrant and undertake to us that any person using the SMARTCAT PLATFORM with your username and password is you or is authorized to act for you. You agree to notify us immediately if you suspect any unauthorized use of your account.
We may, but are under no obligation to, subject Customers and Suppliers to an extensive vetting process before they can register and during their use of the SMARTCAT PLATFORM, including but not limited to verification of identity and comprehensive criminal background check, at the regional, national and local level, using third party services as appropriate. You hereby give us consent to conduct background checks as often as required in compliance with applicable laws and regulations without any notice.
Although we may perform background checks of Users, as outlined above, we cannot confirm that each User is who he or she claims to be and therefore, we cannot and do not assume any responsibility for the accuracy or reliability of the identity or background check information or any other information provided through the SMARTCAT PLATFORM.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people whom you do not know. NEITHER Smartcat NOR ITS AFFILIATES OR LICENSORS SHALL BE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SMARTCAT PLATFORM AND YOU HEREBY RELEASE Smartcat AND ITS AFFILIATES OR LICENSORS FROM ANY LIABILITY RELATED THERETO. Smartcat PLATFORM AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SMARTCAT PLATFORM.
A. The SMARTCAT PLATFORM enables connections between a Customer and a Supplier for the fulfillment of Service Task. We are not responsible for the performance of Users, nor do we have control over or guarantee the quality, safety or legality of any services performed or deliverables created, the truth or accuracy of any Service Task listings, the qualifications, background, or abilities of Customers and Suppliers, the ability of a specific Supplier to perform the Service Task, the ability of a specific Customer to pay for the Service Task. Specifically, we are not responsible for and will not control the manner in which a Supplier operates and are not involved in the hiring, firing, discipline or working conditions of such Supplier unless otherwise agreed upon in a separate agreement between Smartcat and the User.
B. You acknowledge and agree that your relationship with other Users is that of independent contractor. Any User shall perform services as an independent contractor and nothing in this Agreement shall be deemed to create a partnership, joint venture, agency, or employer-employee relationship between the Supplier and the Customer or between us and any Supplier and any Customer.
C. Because we are not involved in the actual contact between Users or in the completion of the Service Tasks, in the event that you have a dispute with one or more Users, you release us (and our officers, directors, agents, shareholders, subsidiaries, employees, licensees and licensors) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. We expressly disclaim any liability that may arise between you and other Users of the SMARTCAT PLATFORM.
A. The engagement, contracting and management of a Service Task are between a Supplier and a Customer. Upon acceptance of a Job Order by the Supplier, the Customer agrees to pay for, and the Supplier agrees to deliver, the Service Task, in accordance with a written agreement between the Supplier and the Customer (if any), other terms and conditions as communicated between the Supplier and the Customer on the SMARTCAT PLATFORM or otherwise, and this Agreement (collectively, the “Job Agreement”). You agree not to enter into any contractual provisions in conflict with this Agreement. Any provision of a Job Agreement that conflicts with this Agreement is void ab initio. The Customer bears the responsibility for managing, inspecting, accepting and paying for satisfactory services and deliverables in accordance with the Job Agreement in a timely manner. The Supplier is responsible for the performance and quality of the services in accordance with the Job Agreement in a timely manner. The Supplier and the Customer each covenant and agree to act in good faith and with fair dealing in performance of the Job Agreement. If the Customer has a specific penalty policy in place, describing how the final payment is discounted depending on the Service Task defects delivered by a Supplier, then the Customer has to describe it in its profile on the SMARTCAT PLATFORM. We are not part of or party to any Job Agreement. We are not a re-Supplier of services provided by Suppliers, unless otherwise agreed upon in a separate agreement.
B. A Supplier is responsible for deciding what price he wants to charge for a Service Task. A Supplier may change its price (or change or remove its services) without notice. However, the price will not change for the Service Task quote already accepted by the Customer.
A. Upon completing the Service Task by the Supplier retained on the SMARTCAT PLATFORM or in other time specified by the Customer in its profile on the SMARTCAT PLATFORM, the Customer shall make payment through the SMARTCAT PLATFORM for the applicable Service Task according to the tariff (price) indicated for this Service Task in the profile of the Supplier on the SMARTCAT PLATFORM. We will assume responsibility for the payment within 5 working days for the Supplier’s services (less any applicable Service Charge, as defined below) provided that the Customer confirms the acceptance of the completed Service Task and pays for the Service Task.
B. To receive funds due to the Supplier, the Supplier must indicate the selection of the funds transfer methods available through the SMARTCAT PLATFORM or by sending an e-mail to [email protected]. Any such request shall be subject to the conditions and restrictions contained in this Agreement. Notwithstanding any other provision of this Agreement, if we determine in our sole discretion that the Supplier has violated the conditions and restrictions of this Agreement, we have the right to refuse to process such request.
C. We have the right to seek reimbursement from you, and you will reimburse us, if we discover a fraudulent transaction, erroneous or duplicate transaction.
D. Users will be liable for and any taxes (including VAT, if applicable) required to be paid on any Service Task completed through the SMARTCAT PLATFORM (other than our income taxes). Users must pay them independently. The SMARTCAT PLATFORM owner shall not be responsible for any of them.
E. You agree to use the SMARTCAT PLATFORM to make all payments to Suppliers registered and retained by you on the PLATFORM, whether first-time, repeat, or follow-on. You also agree not to take any action directly or indirectly to circumvent the SMARTCAT PLATFORM or any associated fees. All Suppliers also agree to use the SMARTCAT PLATFORM and receive all payments from the Customers only through SMARTCAT PLATFORM for any Service Tasks given to them through the SMARTCAT PLATFORM, whether first-time, repeatedly, or a follow-on basis.
F. By using the SMARTCAT PLATFORM to make or receive payments, you expressly acknowledge that (a) we are not acting as a trustee or a fiduciary of Suppliers or Customers and that the SMARTCAT PLATFORM payment services are provided to Users administratively; (b) we are not a “financial institution” or “banking institution” as defined under applicable law and the SMARTCAT PLATFORM payment services are payment rather than banking services; (c) we are not a bank and any payments transferred through the SMARTCAT PLATFORM are not insured deposits and may be subject to default, loss or forfeiture; and (d) we are using authorized payment processing agents to make and receive payments between Users through the SMARTCAT PLATFORM.
G. The SMARTCAT PLATFORM operates in US Dollars, Euro and Russian roubles. We are not responsible for currency fluctuations that occur when billing or crediting a credit or debit card denominated in a currency other than US Dollars or Euro, nor are we responsible for currency fluctuations that occur when receiving or sending payment via wire transfer, check or automated clearing house to and from your bank account, credit card account or PayPal account.
H. If the Customer chooses the billing currency other than the currency of the tariff (price) indicated for this Service Task in the profile of the Supplier on the SMARTCAT PLATFORM, foreign currency conversion is processed at a foreign currency conversion rate that is set in the SMARTCAT PLATFORM once per week by calculating the weighted average conversion rate for the previous week.
The SMARTCAT PLATFORM offers its Users auxiliary services that you can choose (order) on the SMARTCAT PLATFORM. There may be service fees (charges) for such services that are detailed on the SMARTCAT PLATFORM. We reserve the right to change the service fees (charges) or any other fee that may be charged by us at any time, in our sole discretion and upon a not less than seven (7) days’ notice posted in advance on the SMARTCAT PLATFORM.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the SMARTCAT PLATFORM for your personal use and commercial purpose according to the designated use of the SMARTCAT PLATFORM. We reserve all rights not expressly granted herein in the SMARTCAT PLATFORM.
This Agreement shall become effective once you have created an account (registered) on the SMARTCAT PLATFORM and shall continue until your account is terminated by you or us as provided for under the terms of this section.
We may terminate or suspend your right to access and license to use the SMARTCAT PLATFORM at any time by providing you with email notice of such termination in the following cases:
We may also terminate or suspend your right to access and license to use the SMARTCAT PLATFORM in the following cases:
provided that we notified you about such termination or suspension by way of sending a notification of termination or suspension or via e-mail and gave you 14 calendar days to eliminate such violation and you failed to eliminate such violation within the said term.
Termination or suspension of your right of access also means termination or suspension of your license to use the SMARTCAT PLATFORM given to you in accordance with Section 9 of this Agreement.
If we terminate or suspend your right to use the SMARTCAT PLATFORM for any of these reasons, you will not be entitled to any refund of unused balance in your account. If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, unless we give express consent hereto. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
Even after your right to access and/or use the SMARTCAT PLATFORM is terminated or suspended, this Agreement will remain enforceable against you.
You may terminate this Agreement at any time by ceasing all access and use of the SMARTCAT PLATFORM by sending an e-mail termination notice to [email protected]. This will also mean your waiver of the license to use the SMARTCAT PLATFORM. All sections which by their nature should survive the expiration or termination of this Agreement shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
When your account is terminated for any reason, you may no longer have access to any data, messages, files and other materials you keep on the SMARTCAT PLATFORM. The materials may be deleted along with all your previous content posted on the SMARTCAT PLATFORM.
We respect the intellectual property of others and expect you and other Users to do the same. If you believe, in good faith, that any materials provided on or in connection with the Service Task infringe upon your copyright or other intellectual property right, please send the following information to the Smartcat’s copyright agent at [email protected]:
The SMARTCAT PLATFORM may contain profiles, email systems, blogs, message boards, chat areas, news groups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow Users to communicate with other Users. You may only use such community areas to send and receive messages and material that are relevant and proper to the applicable forum.
Without limitation, while using the SMARTCAT PLATFORM, you may not:
You are solely responsible for all documents, information, data, text, images, software, music, videos, sound, photographs, graphics, messages or other materials, including any texts you submit for translation (“Content”) that you upload, e-mail, post, publish or display (hereinafter, “upload”) or otherwise use via the SMARTCAT PLATFORM. We reserve the right to investigate and take appropriate legal action against anyone who, in our sole discretion, violates this provision, including without limitation, removing the offending content from the SMARTCAT PLATFORM, suspending or terminating the account of such violators and reporting you to the law enforcement authorities.
Under no circumstances we have any intellectual property rights to any Content you upload or otherwise use via the SMARTCAT PLATFORM.
You acknowledge and agree that we may preserve the content and may also disclose the content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal processes, applicable laws or government requests; (b) enforce this Agreement; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of us and the public. You understand that the technical processing and transmission of the SMARTCAT PLATFORM, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Your Content is encrypted as follows: SMARTCAT PLATFORM uses an HTTPS/TLS protocol to protect data in transit between your computer and our servers, and a 256-bit Advanced Encryption Standard (AES) to protect data at rest.
13.1. Your Content containing personal data
You acknowledge and agree that some of the Content that you upload may contain Personal data as defined below.
Personal data is any information relating to an identified or identifiable natural person (‘data subject’); 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. The definition of Personal data is actually given in Article 4 Regulation (EU) 2016/679 of the European Parliament and of the Counsel of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (the so called “General Data Protection Regulation” or “GDPR” as sometimes abbreviated).
For purposes of this Agreement, "Confidential Information" shall mean all information in any and all medium, including but not limited to the Content, that has been disclosed or will be disclosed by you to Smartcat and/or any Supplier via the SMARTCAT PLATFORM including, without limitation, text, data, technology, source code, know-how, inventions, discoveries, designs, processes, formulations, models, equipment, algorithms, software programs, documents, specifications, information concerning research and development work, and/or trade and business secrets.
Confidential Information shall not include any information which:
a) is already known to Smartcat or is publicly available at the time of disclosure;
b) becomes known to the general public after disclosure through no act of Smartcat in breach of this Agreement;
c) is disclosed to Smartcat by a third party who is not, to the knowledge of the Smartcat Platform, in breach of an obligation of confidentiality;
d) was or is independently developed by Smartcat without use of the Confidential Information disclosed by Smartcat; or
e) is disclosed pursuant to a court order, provided Smartcat at your request and expense, uses reasonable efforts to limit such disclosure to the extent requested.
Smartcat shall not disclose or otherwise provide any Confidential Information to any third party without your prior written consent. You will solely decide whether to disclose or not your Confidential Information via SMARTCAT PLATFORM to a Supplier.
Smartcat undertakes to you to take a similar confidentiality undertaking from any Supplier before it starts to use the SMARTCAT PLATFORM to (i) use the Confidential Information solely for the purpose of performing the Service Task or evaluating the Service Task (“Permitted Purpose”), (ii) not, without your prior consent, disclose to any third party your Confidential Information, other than furnishing such Confidential Information to the Supplier’s employees, agents, consultants, contractors, representatives or affiliated entities who need to have access to such Confidential Information in connection with the Permitted Purpose, (iii) use at least reasonable care to protect the confidentiality of your Confidential Information, and (iv) in the event that a Supplier is required by law to make any disclosure of any of your Confidential Information, by subpoena, judicial or administrative order or otherwise, the Supplier will use commercially reasonable efforts to give you notice of such requirement (to the extent legally permissible) and will permit you to intervene in any relevant proceedings to protect your interests in the Confidential Information. For the avoidance of doubt Smartcat shall not be liable in case a Supplier that received any Confidential Information from you via SMARTCAT PLATFORM discloses it for whatever reason to a third party, including, but not limited to, as result of breach by the Supplier of its confidentiality undertaking.
Smartcat agrees that it will not copy and/or use the Confidential Information except for the purpose and in connection with business, legal and factual relations of Smartcat, yourself and Suppliers via the SMARTCAT PLATFORM.
Smartcat agrees that it shall hold all Confidential Information in strict confidence and to take all reasonable steps to safeguard the Confidential Information including, without limitation, those steps that it takes to protect its own Confidential Information of a similar nature.
Smartcat agrees to limit its internal disclosure of Confidential Information only to those of its employees who need to know such information and who have signed an agreement with Smartcat binding them to terms and conditions substantially similar to those of this Agreement.
Smartcat as well as Suppliers that communicate with you via the SMARTCAT PLATFORM under no circumstances shall obtain ownership rights or other intellectual property rights under this Agreement in respect of the Confidential Information given by you, including rights to the Content uploaded via SMARTCAT PLATFORM and/or created in the process of translation with the use of SMARTCAT PLATFORM. Except for cases when it was approved in writing by you and when you hire contractors and/or translators and grant them right of access to certain Content, Smartcat confirms that such Content uploaded via the SMARTCAT PLATFORM and/or created in the process of translation with the use of the SMARTCAT PLATFORM is not transferred anywhere from your account, is not displayed or offered for use to other users.
Upon the termination of this Agreement and at your written request, Smartcat shall destroy subject to your written instructions all Confidential Information in paper and/or electronic form in its possession.
Smartcat’s obligations with respect to each other’s Confidential Information shall survive termination of this Agreement and remain in effect for a period of two (2) years from the date of termination.
All Smartcat intellectual property rights such as text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that Users see or read through the SMARTCAT PLATFORM is owned by us, excluding the User Content that we have the right to solely use for the purposes of this Agreement. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. We own all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a collective work under the applicable intellectual property legislation. The Proprietary Material is protected by the domestic and international laws on copyright, patents, and other proprietary rights and laws. Users may not copy, download, use, redesign, reconfigure, or retransmit anything from the SMARTCAT PLATFORM without our express prior written consent and, if applicable, the holder of the rights to the User Content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without our prior permission and, if applicable, the holder of the rights to the User Content.
Our service marks and trademarks, including without limitation our logos are service marks owned by us. Any other trademarks, service marks, logos and/or trade names appearing on the SMARTCAT PLATFORM are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner.
YOUR USE OF THE SMARTCAT PLATFORM IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
UNLESS OTHERWISE PROVIDED BY THE SMARTCAT PLATFORM LICENSE AND SERVICES AGREEMENT THAT MAY BE ADDITIONALLY CONCLUDED BETWEEN US AND YOU, WE MAKE NO WARRANTY THAT (I) THE SMARTCAT PLATFORM WILL MEET YOUR REQUIREMENTS, (II) THE SMARTCAT PLATFORM WILL BE UNINTERRUPTED, TIMELY (UP-TO-DATE), OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SMARTCAT PLATFORM WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OR FITNESS OF ANY DOCUMENTS, PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SMARTCAT PLATFORM WILL MEET YOUR EXPECTATIONS.
THE SMARTCAT PLATFORM IS SECURED BY TAKING APPROPRIATE ADMINISTRATIVE, PHYSICAL, AND TECHNICAL MEASURES FOR PROTECTION OF THE SECURITY, CONFIDENTIALITY AND INTEGRITY OF YOUR DATA, INCLUDING, BUT NOT LIMITED TO USING CERTIFIED SECURED DATA PROTOCOLS AND ENCRYPTING SENSIBLE DATA (“SMARTCAT SECURITY”). THE SMARTCAT SECURITY IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND SMARTCAT MAKES NO WARRANTIES THAT THE LEVEL OF SMARTCAT SECURITY SHALL BE RESISTANT TO POSSIBLE DDOS AND ANY OTHER TYPES OF ATTACKS ON SMARTCAT PLATFORM AND CONSECUTIVELY BEARS NO LIABILITY WHATSOEVER IF THE AVAILABLE LEVEL OF SMARTCAT SECURITY IS NOT SUFFICIENT TO WITHSTAND ANY OF THE ABOVE MENTIONED ATTACKS.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND OUR AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, OWNERS, INFORMATION PROVIDERS, AGENTS, LICENSEES, LICENSORS (COLLECTIVELY, “RELEASED PARTIES”) WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SMARTCAT PLATFORM; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SMARTCAT PLATFORM; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SMARTCAT PLATFORM; OR (V) ANY OTHER MATTER RELATING TO THE SMARTCAT PLATFORM. IN NO EVENT WILL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED $100.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SMARTCAT PLATFORM OR WITH THIS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE THE USE OF THE SMARTCAT PLATFORM.
If you have a dispute with another User, you shall release the Released Parties from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute.
This clause is applicable to you only if you are registered and/or reside in North America, South America or Japan: IF THIS AGREEMENT IS CONCLUDED BY YOU WITH SMARTCAT PLATFORM INC., YOU HEREBY WAIVE CALIFORNIA CIVIL CODE §1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR".
You are responsible for maintaining confidentiality of your account and password(s). You are also responsible for all activities that occur under your account. Therefore, you agree to indemnify, defend and hold Smartcat and its affiliates, employees, officers, directors, owners, information providers, agents, licensees, licensors (the “Indemnified Parties”) harmless from and against any and all liabilities, claims, costs, including reasonable attorneys’ fees, incurred by the Indemnified Parties in connection with any third party demand, claims, action, suit, or loss arising as a result of (a) any breach by you of this Agreement or claims arising from your account or any other use by you of the SMARTCAT PLATFORM; (b) any fraud or manipulation by you; (c) any third-party claim, action or allegation of infringement based on information, data, files or other content submitted by you; (d) any claims of credit card fraud based on any information released by you or (e) any claims for breach of payment terms by any Supplier. You agree to use your best efforts to cooperate with us in the defense of any demand, claim, action or suit. We reserve the right to assume the exclusive defense of any matter subject to indemnification by you at our own expense.
Please note that we may disclose information about you to third parties if we have a good faith belief that such a disclosure is reasonably necessary to (i) take action regarding suspected illegal activities; (ii) enforce or apply the Agreement; (iii) comply with legal process or other government inquiry, such as a search warrant, subpoena, statute, judicial proceeding, or other legal process served on us.
20.1. Information you Submit
We may store the information you submit to or through the SMARTCAT PLATFORM. We use the information to fulfill your requests, provide the SMARTCAT PLATFORM functionality and personalize your experience, provide customer support, message you, back up our systems, allow for disaster recovery, and comply with legal obligations always subject to Confidentiality provisions of Section 14 above.
Among the information you submit to or through the SMARTCAT PLATFORM, please note:
Account Registration: You must provide a valid email address in order to sign up for an account on the SMARTCAT PLATFORM. When you sign up for an account, we opt you in to receive emails from us by default. For example, we will contact you by email to send you an account verification link, to inform you of an order made, to inform you of an order completed, or to contact you regarding any other issues concerning your order or the SMARTCAT PLATFORM functionality or performance.
Credit Card Purchases: If you purchase certain products or services through the SMARTCAT PLATFORM, we may collect and store payment history information. This information will only be shared with third parties who perform the tasks required to complete the purchase transaction (such as fulfilling orders and processing credit card payments). We do not store any billing and/or credit card information. In accordance with the recommendations of Payment Card Industry Security Standards Council, customer card details are protected using Transport Layer encryption — TLS 1.2 and application layer with algorithm AES and key length 256 bit.
20.2. Information we Collect
In addition to the information you submit to or through the SMARTCAT PLATFORM, we also collect and store information from and about you in the course of your use of the SMARTCAT PLATFORM. We use this information to analyze and track user behavior, personalize your experience, associate it with other information about you and provide the functionality of the SMARTCAT PLATFORM. For the avoidance of doubt, except for cases when it was approved in writing by you and when you hire Suppliers and grants them right of access to a certain Content, Smartcat confirms that such Content uploaded via the SMARTCAT PLATFORM and/or created in the process of translation with the use of the SMARTCAT PLATFORM is not transferred anywhere from your account, is not displayed or offered for use to other users.
Location: We may collect and store information about your location if you enable your computer or mobile device to send us location information. You may be able to change the settings on your computer or mobile device to prevent it from providing us with such information.
Activity: We may collect and store information related to you and your use of the SMARTCAT PLATFORM, such as your browser type, IP address, unique device identifier, phone numbers and names of other Users that you communicate with the SMARTCAT PLATFORM, requested URL, referring URL, browser language, pages you view, and date and time of your visit.
Identity Verification. We may collect personal information to verify your identity, including information from third party agencies.
20.3. Third Parties
We do not rent, share, sell or trade personally identifiable information with third parties for their direct marketing purposes. That said, we work with third parties and they may have access to some of your information:
Service Providers: We may outsource some of our technical and customer support, quality assurance testing, payment processing functions, and other services to third parties.
Investigations: We may investigate and disclose information from or about you if we have a good faith belief that such investigation or disclosure is (a) reasonably necessary to comply with legal process and law enforcement instructions and orders, such as a search warrant, subpoena, statute, judicial proceeding, or other legal process served on us; (b) helpful to prevent, investigate, or identify possible wrongdoing in connection with the SMARTCAT PLATFORM; or (c) protect our rights, reputation, property, or those of our users, affiliates, or the public.
Links: the SMARTCAT PLATFORM may contain links to unaffiliated third party websites. Except as set forth herein, we do not share your personal information with them, and are not responsible for their privacy practices. We suggest you read the privacy policies on all such third party websites.
20.4. Data Retention and Account Termination
The information we obtain from or about you (including the texts you submit for translation) may be processed and stored on the server chosen by you during registration. We may keep it as long as is permitted or required under the law. If you terminate your account, we will remove your User Content from the SMARTCAT PLATFORM without any notice. Please note that information may exist in backup storage even after it has been removed from our active databases. You can request that your account be terminated by sending an e-mail termination notice to [email protected] as well as request your information to be deleted.
20.5. Third Party Services
If you register on the SMARTCAT PLATFORM through third party social networking services, such as Facebook, LinkedIn, and other third party services that allow you to sign in to other services with the personal information shared with these services, we will use the personal information you provided to such Third Party Services to create your account on the SMARTCAT PLATFORM.
A. If you are registered and/or reside in Europe, Asia (excluding Japan) or Africa, any dispute (“Dispute”) arising from or relating to the subject matter of this Agreement shall be finally settled by LCIA arbitration in London, the United Kingdom, using the English language in accordance with the LCIA rules (“LCIA”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of LCIA arbitrators in accordance with the LCIA rules.
If you are registered and/or reside in North America, South America or Japan, any dispute (“Dispute”) arising from or relating to the subject matter of this Agreement shall be finally settled by ICC arbitration in San Francisco, California, U.S.A., using the English language in accordance with the ICC arbitration rules (“ICC”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of ICC arbitrators in accordance with the ICC rules of arbitration.
Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be.
This clause below is applicable to you only if you are registered and/or reside in North America, South America or Japan:
Any arbitration under this Agreement will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND US ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Notwithstanding the foregoing, each party shall have the right to institute an action at any time in a court of proper jurisdiction for injunctive or other equitable relief.
B. This Arbitration provision is a full and complete agreement relating to the formal resolution of disputes covered by this Arbitration provision. In the event any portion of this Arbitration provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable.
This clause below is applicable to you only if you are registered and/or reside in North America, South America or Japan:
If the Class Action Waiver in subsection C, below, of this Arbitration Provision is deemed to be unenforceable, you and we agree that this Arbitration provision is otherwise silent as to any party's ability to bring a class, collective or representative action in arbitration.
This sub-clause C below is applicable to you only if you are registered and/or reside in North America, South America or Japan:
C. THIS ARBITRATION PROVISION AFFECTS YOUR ABILITY TO PARTICIPATE IN CLASS, COLLECTIVE OR REPRESENTATIVE ACTIONS. BOTH YOU AND WE AGREE TO BRING ANY DISPUTE IN ARBITRATION ON AN INDIVIDUAL BASIS ONLY, AND NOT ON A CLASS, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL REPRESENTATIVE BASIS ON BEHALF OF OTHERS. THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT, HEARD OR ARBITRATED AS A CLASS, COLLECTIVE, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, OR AS A MEMBER IN ANY SUCH CLASS, COLLECTIVE, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL PROCEEDING (“CLASS ACTION WAIVER”). THE CLASS ACTION WAIVER DOES NOT APPLY TO ANY CLAIM YOU BRING AS A PRIVATE ATTORNEY GENERAL SOLELY ON YOUR OWN BEHALF AND NOT ON BEHALF OF OTHERS. NOTWITHSTANDING ANY OTHER PORTION OF THIS ARBITRATION PROVISION OR THE JAMS RULES, DISPUTES REGARDING THE VALIDITY, ENFORCEABILITY OR BREACH OF THE CLASS ACTION WAIVER MAY BE RESOLVED ONLY BY A CIVIL COURT OF COMPETENT JURISDICTION AND NOT BY AN ARBITRATOR. IN ANY CASE IN WHICH (1) THE DISPUTE IS FILED AS A CLASS, COLLECTIVE, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AND (2) A CIVIL COURT OF COMPETENT JURISDICTION FINDS ALL OR PART OF THE CLASS ACTION WAIVER UNENFORCEABLE, THE CLASS, COLLECTIVE, REPRESENTATIVE AND/OR PRIVATE ATTORNEY GENERAL ACTION TO THAT EXTENT MUST BE LITIGATED IN A CIVIL COURT OF COMPETENT JURISDICTION, BUT THE PORTION OF THE CLASS ACTION WAIVER THAT IS ENFORCEABLE SHALL BE ENFORCED IN ARBITRATION. YOU AND WE AGREE THAT YOU WILL NOT BE RETALIATED AGAINST, DISCIPLINED OR THREATENED WITH DISCIPLINE AS A RESULT OF EXERCISING YOUR RIGHTS UNDER SECTION 7 OF THE NATIONAL LABOR RELATIONS ACT BY FILING OR PARTICIPATING IN A CLASS, COLLECTIVE OR REPRESENTATIVE ACTION IN ANY FORUM. HOWEVER, THE COMPANY MAY LAWFULLY SEEK ENFORCEMENT OF THIS ARBITRATION PROVISION AND THE CLASS ACTION WAIVER UNDER THE FEDERAL ARBITRATION ACT AND SEEK DISMISSAL OF SUCH CLASS, COLLECTIVE OR REPRESENTATIVE ACTIONS OR CLAIMS. THE CLASS ACTION WAIVER SHALL BE SEVERABLE IN ANY CASE IN WHICH THE DISPUTE IS FILED AS AN INDIVIDUAL ACTION, AND SEVERANCE IS NECESSARY TO ENSURE THAT THE INDIVIDUAL ACTION PROCEEDS IN ARBITRATION.
This Agreement, any amendments hereto and other additional agreements you may enter into with us in connection with the SMARTCAT PLATFORM as well as information available on the SMARTCAT PLATFORM, shall constitute the entire agreement between you and us concerning the SMARTCAT PLATFORM. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction or notice.
We may provide notices, whether such notices are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by us in our sole discretion. We reserve the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement.
If you are registered and/or reside in Europe, Asia (excluding Japan) or Africa, the laws of England and Wales, excluding its conflicts-of-law rules, govern this Agreement.
If you are registered and/or reside in North America, South America or Japan, the laws of State of California, excluding its conflicts-of-law rules, govern this Agreement.
Should you wish to contact us with any questions or claims with respect to the SMARTCAT PLATFORM, please visit our website at www.smartcat.ai or email at [email protected]. In case of technical or performance issues, please contact us at [email protected]. Should you have any questions or should you require support in relation to payments, please contact us at [email protected] (if you enter this agreement with Smartcat Platform Limited, a legal entity registered in the Republic of Cyprus) or [email protected] (if you enter this Agreement with Smartcat Platform Inc., a legal entity registered in the USA).