These Terms apply to all organisations or individuals using SmartUp. Our Terms are a contract between you and Smartup.io Limited, governing your use of SmartUp services, apps, sites, content, and products. These Terms, our Privacy Policy and Trade Mark and Copyright Policy will apply whenever you visit SmartUp, whether or not you have chosen to register with us. If you do not accept and agree to the Terms, then you must not use SmartUp.

By accessing, using, registering or receiving any content from SmartUp, you are agreeing and accepting to be bound by our Terms. Any breach of these Terms entitles us to disable access to any Communities.

1. WHAT IS SMARTUP?

1.1. SmartUp is a micro-learning platform accessible by App and by Web, or a white labelled application, providing the opportunity to create and consume micro-learning content by way of a Software application and Content (such as data, reports, articles, text, images) made available by or on behalf of SmartUp, referred to as the “Services” or “Software”. Your Content, Our Content and User Content is defined below.

1.2. We refer to “Communities” – this is a SmartUp group of users identifying with pieces of learning or subjects and creating a buzz around it (“Communities”). These Communities may be made publically accessible or restricted to a private group of users and number of users, depending on your Licence Plan.

1.3. SmartUp offers Content Creation Services to help you kick-start your Community engagement: please contact us at support@smartup.io

1.4. SmartUp’s Licence Plans describe the Services on offer to SmartUp users. If you sign up to SmartUp without entering into a paid Licence Plan you will automatically be placed onto the free Licence Plan made available at the point of sign up. You acknowledge and agree that a free Licence Plan will restrict the functionality of the Services.

1.5. SmartUp offers Content Creation Services to help you kick-start your community engagement: please contact us at support@smartup.io

1.6. We’ve put together a Q&A guide to our services: https://smartup.zendesk.com/hc/en-us

1.7. SmartUp.io Limited is a company registered in England & Wales (with company number 08855163) with registered office at Northcliffe House Young Street, 4th Floor, London, United Kingdom, W8 5EH.

2. REGISTRATION FOR SERVICES AND ACCEPTANCE OF TERMS

2.1. There are various ways to sign up for SmartUp’s Services. These Terms apply to every type of SmartUp user. The types of SmartUp users are:

• “Owner” – this is the primary individual who initially sets up the Service, grants privileges to other users, designates an Admin(s) (as defined below), and retains ultimate control over the team they set up within the Services;
• “Admin(s)” – the individual(s) who manage, run and control a Community on SmartUp, with authority and privileges to grant access rights and invitations to other users, deal with personal data user requests (such as deletion, access, portability and modification), send Community notifications, publish User Content and more. This role will have been created and assigned by the Owner;
• “Channel Manager” – the manager of one or more channels within the Community and granted particular rights. The Admin(s) assigns this role to an individual within the Community;
• “Community User”:
  • a user invited by Owner and/or Admin to join an existing Community already set up, or
  • a user joining a publically accessible Community
    All users have the right to create User Content in accordance with the relevant Community rules.
• “Guest User” – this is a user invited into a specific Community by an Admin with access only to that specific Community.

2.2. You may only use and become a registered user of SmartUp if you are of the relevant age of majority according to where you live. The Services are not directed at children under 13 who are not permitted to use the Services. If your organisation is a school or you are a teacher and wish to provide use of the Services to your students, we will rely on you to acquire the necessary consents and approvals from the relevant parents or guardian of any student and you may not use the Services unless such laws have been complied with.

2.3. To register, the process for all users is:

• you as an Owner will identify an Admin, Channel Manager and Community Users by way of a set of credentials (usually by email and password) for your SmartUp Community (with our help depending on your Licence Plan);
• the Owner and Admin may then invite a maximum amount of users (in accordance with Your Licence Plan) to join the Community. You may also designate authority to the Admin to run the Community. The Owner (or Admin ) has the sole right to set permissions for Community Users.

2.4. You acknowledge the Services are still in build phase and, as a result, may contain technical errors, or, may not work correctly. Please notify us of any faults at support@smartup.io

2.5. You are either a user from the public and unaffiliated with any organisation, network, school, university or corporate organisation (“Public User”), or you are a user affiliated with an organisation (“Network User” – see below for more details).

 

Public User

2.6. If you are entering into these Terms on behalf of a legal entity such as an institution, company or organisation you represent you have authority to bind such company, organisation, institution or entity (generically referred to as a “Smartup Partner”), its Owners, Admins, Community Users and its affiliates to these Terms. In that case, the terms ‘you’ or ‘your’ shall also refer to its Owners, Admins, Community Users and its affiliates, as applicable.

2.7. To create a SmartUp Public User personal profile (“Personal Account”), you can sign up via one of our partner sites (such as LinkedIn or Facebook) or, if available, email. If you have signed up via your own personal email account or personal social media platform, we utilise these Personal Details only in the provision of the services detailed in these Terms and in our Privacy Policy. Your Content (as defined below) belongs to you, in accordance with these Terms. On sign up, you consent to us processing your personal data in accordance with our Privacy Policy. You also understand that this service will be provided to you either by SmartUp or by a SmartUp Partner, and in the latter case you agree to the SmartUp Partner privacy policy and applicable terms.

2.8. If you already have a SmartUp Profile through a Network and wish to set up your own Public Personal Account, you can set up an independent Personal Account: this is never linked to your Network account.

2.9. Once you have created a SmartUp Public User personal profile, you accept that the Admins and Owners from the organization providing the service (either SmartUp or a SmartUp Partner), may obtain access to all of your current account activity on SmartUp. We provide Services to the SmartUp Partner, who will control and provide the service to you via SmartUp. If you have any questions, you must direct these to the SmartUp Partner Owner or Admin. If you need any help in reaching out to a SmartUp Partner, please get in touch with support@smartup.io and we will do it for you.

 

Network User

2.10. If you are entering into these Terms on behalf of a legal entity such as an institution, company or organisation you represent you have authority to bind such company, organisation, institution or entity (generically referred to as a “Network”), its Owners, Admins, Community Users and its affiliates to these Terms. In that case, the terms ‘you’ or ‘your’ shall also refer to its Owners, Admins, Community Users and its affiliates, as applicable.

2.11. If you are providing a work email address and invited to join by an Admin you accept that the owner of the domain email, such as the Owner, may obtain access to all of your current account activity on SmartUp via your work registration process. We provide Services to your Network, who will control and provide your SmartUp account. If you have any questions, you must direct these to your Network Owner or Admin.

2.12. The Network Owner is exclusively responsible for ensuring each user that joins a Network has provided consent to receiving the invitation, using the Services, and complying with its Network’s relevant policies. Upon log-in to the Services you will be required to accept the Privacy Policy and these Terms.

2.13. You warrant each time you use the Services, you will comply with your Network’s policies, guidelines and processes in relation to the Content you provide to SmartUp and activities you carry out on SmartUp.

2.14. If you have already set up a SmartUp Personal Account before you are invited to join a Network on SmartUp, your Personal Account will be separate to your Network account. We will not import Your Content from one to the other.

3. CONDITIONS FOR ACCESS AND USE OF THE SERVICES

3.1. SmartUp is all about Content – we want all users to contribute as much Content as possible! Here are the types of Content that you will be able to access and or provide:

• content you provide (“Your Content”);
• content we, SmartUp, provide (“Our Content”); and
• content other SmartUp users provide (“User Content”).

Content’ means any articles, information, documents, videos, polls, competitions, materials, photographs, text, and data that you, we, or any other SmartUp user creates, publishes, links, customises, stores or sends in connection with the Services.
We have some terms we would like all our users to abide by so SmartUp can be the best platform for everyone. Any questions let us know support@smartup.io

3.2. Warranties:
If you are entering into these Terms on behalf of a Network, You represent and warrant to SmartUp on behalf of the Network:

• you have obtained all permissions, licences, rights, and releases needed to interact, post and publish any of Your Content on SmartUp and no other consents or releases are required for you or your Network to engage.

If you are a Network or a Public User, you represent and warrant to SmartUp:

• your Content and interaction on SmartUp and in connection with the Service as well as SmartUp’s exercise of all rights and licenses granted by you in these Terms, do not and will not infringe any third party’s intellectual property, such as any third party’s copyright, trade mark, right of privacy;
• your Content and interaction on SmartUp and in connection with the Service does not and will not contain anything unlawful or illegal; and
• you comply and will continually comply with our Content Rules and Trade Mark and Copyright Policy.

3.3. Content Rules:

• our Content is the only Content we are responsible for;
• the Public Communities are controlled and operated either by SmartUp or a SmartUp Partner. SmartUp or the SmartUp Partner reserve the right to decide what may or may not be published.You are responsible for Your Content, your use of any User Content or Our Content and any communications you post;
• please publish anything you own the rights to; you assume all risks related to Your Content you post, including someone else’s reliance on its accuracy, or claims relating to intellectual property or other legal rights;
• if you find any offensive, inappropriate, or unlawful Content, we are not responsible for this (or any conduct, online or offline). You acknowledge that SmartUp has the right (but not the obligation) to pre-screen, refuse or remove any of Your Content or User Content made available on the Services for any reason. This may include us reviewing Your or User Content to ensure it complies with our policies (including our moderation policy) in response to a complaint or alleged breaches of the Terms. We may, in our sole discretion, review Your or User Content transmitted through private communities in response to a complaint or alleged breaches of the Terms.

Please do not:

• post any Content that is illegal, defamatory, libelous, or infringes the rights of any use or other third party or SmartUp’s intellectual property rights or of any third party. This includes trade secrets, copyrights, privacy rights, or other priority rights;
• do not share anything you do not have permission to share. This could include, for example, Content belonging to your employer, but you have not gained consent to re-post. Please check who you should credit as the author in the event you do gain permission to share someone else’s Content;
• send or post or transmit Content relating to unapproved commercial activities including without limitation sales, advertising, spam or junk email;
• post any Content which contains language which could be deemed offensive or is likely to harass, upset, embarrass, alarm or annoys any other person, is abusive,
• insulting or threatening, or which promotes or encourages racism, sexism, hatred or bigotry, or is otherwise objectionable;
• encourage any illegal activity;
• use the Services to harm a minor in any way;
• disguise the origination of any data or Your Content;
• upload, post, transmit or otherwise make available any of your data or Your Content you do not have the right to make available under any law or contractual or fiduciary relationship, such as but not limited to confidential or proprietary information disclosed as part of employment relationships;
• contains any spyware, adware, viruses, corrupt files, worm programs or other malicious code designed to interrupt, damage, destroy or limit the functionality of or disrupt any Software, hardware, telecommunications, networks, servers or other equipment, Trojan horse or any other material designed to damage, interfere with, wrongly intercept or expropriate any data or personal information whether from SmartUp or otherwise;
• modify adapt or hack the Service or servers or network or otherwise attempt to gain unauthorized access to the Service or its systems or network;
  collect or store personal data about other users in connection with any of the activities set out above.

If someone is not obeying these Terms, you can report any abuse by contacting your Admin or support@smartup.io To help best assist you, please explain the reason for the complaint and provide any additional information that will assist. We will always try our best to help resolve any issue that you may encounter with our service. If your complaint or dispute remains unresolved, however, you may be eligible to use the European Commission’s Online dispute resolution platform here.

3.4. You may not disclose your log in details or password to any third parties or share it with any third parties. If you lose your password or give it out, please immediately change your password in settings. We are not responsible for any failure to keep your log in details confidential. We recommend you use anti-virus software, firewalls, and other precautions to protect yourself from security threats. SmartUp will have no liability for any unauthorised access or use of your data or Your Content, or any deletion, corruption, loss of your data or Your Content. You further acknowledge and agree that Your Content or data may be transmitted in an unencrypted method if you elect to use gateways without encryption to access the Services.

3.5. Links: A Community User in a SmartUp Community may post Content containing links to other sites, resources and purchase opportunities provided by third parties. If you access these links you may be directed to third party sites, which will have their own terms and conditions of use. Links being displayed does not mean SmartUp endorses any of the third party Content information or resources provided. Please check third party site terms of use carefully as SmartUp has no control and no responsibility for them.

3.6. Support Services: We will provide you technical support for the Services, currently only available via email: support@smartup.io. We have a bespoke support Service paid for Licence Plans.

4. CONTENT OWNERSHIP AND DISTRIBUTION OPTIONS

Content distribution

4.1. SmartUp allows you to share Content with other users. All Communities are private unless you are a Public User. If you do not want an open community please ask us about a paid for Licence Plan. What does this mean?

• an open Community means your Content can be visible to everyone on the SmartUp Services;
• a private Community is accessible to a select number of SmartUp users – and Your Content is restricted to that Community;
• community access can be limited to a Network and again within that Network (for example, a bank can set up a community, and each department within that bank can set up a further channel);
• check you have the right Licence Plan in place and understand the rules with your Owner/Admin.

4.2. In all cases, any Content you publish to your Channel will be visible to all the other users of that Channel = (as well as the Owner/Admin). You agree that in such cases, the Owner/Admin may use, distribute, adapt, and send Your Content as they deem fit in relation to the Services.

Content Ownership

4.3. SmartUp’s licence to you: We grant you, subject to compliance with these Terms and for as long as you use your account and/or have a valid Licence Plan in place, a non-exclusive, personal, non-transferable, limited, revocable licence to use: (i) the Services; and (ii) any publically accessible User Content.

4.4. To the extent we deliver anything to you during the course of performing Services (“Deliverables”), we grant you a non-exclusive, non-transferable, worldwide, royalty-free, limited-term license to use those Deliverables during the term of this Agreement, solely in conjunction with your use of SmartUp.

4.5. You acknowledge and agree that we own all intellectual property rights in the Services. All title, rights, and interest in and to the Services and including all intellectual property rights remain exclusively with SmartUp.

4.6. So we can provide the Services to you, we need to be able to store, transit and copy Your Content and associated data to display it to you and any SmartUp users in your Community (including backups) and you grant us the right and permission to do so and provide the Services to you. Data here means any data, including Your Content or comments or activity which you post, upload, transmit, transfer, your profile information, profile activity, log details, or any other activity or interaction with the Services. These rights described in this section 4.6 include us using third-party providers such as cloud Services to support the administration of the Service. SmartUp will use commercially reasonable efforts to ensure your data is stored and processed to a high standard of security – please see our Privacy Policy.

 

Public User 

4.7. Your Licence to SmartUp: You own Your Content you post to the Services. So we can make SmartUp a great learning place for all users, in consideration for use of the Services, you grant SmartUp and the SmartUp Partners, when appropriate, a non-exclusive license, royalty-free, perpetual and worldwide licence to use your Content on SmartUp, including anything reasonably related to using it (like editing, copying, modifying, adapting, translating, reformatting, creating derivative works from, distributing, advertising and otherwise making available to the general public such Content in whole or in part in any form or medium currently known or developed in the future). If agreed in your License Plan with us, we may use Your Content for commercial purposes with your consent.

4.8. We may assign and or sub-licence the above licence to our affiliate or successors without any further approval by you.

4.9. If you wish to delete YourPersonal Account, you may do so at any time by contacting Your Community Admin. If you require further details on this you can contact support@smartup.io. If you wish to delete Your Content, please contact your Admin or Owner, as such deletion is in their sole discretion (subject to any applicable laws). You should know that, for technical reasons, data deleted may persist for a limited period of time in backup copies (though it will not be visible or accessible to other users).

 

Network User
4.10. We act in accordance with your Network’s instructions to store and process Your Content on the Services. You Content ownership rights are (i) governed by your Network’s policies and procedures and (ii) owned by your Network, including any communication with other users of the Services and anything you post or share on the Services.

4.11. Your Limited Licence to SmartUp:

• if you are the Owner/Admin of a Network User, you agree and to procure the granting to SmartUp of a non-exclusive, limited-term, royalty-free, worldwide licence in order for SmartUp to provide the Services to the Network only.

4.12. In the event You use, merge or combine any of Our Content in combination with Your Content, in order for you to do so, we automatically grant you a revocable, non-exclusive, non-transferable, worldwide, licence in relation solely to Our Content in conjunction with the use of SmartUp.

4.13. We may assign and or sub-licence the above licence to our affiliate or successors without any further approval by you.

4.14. If you wish to delete Your Content, please contact your Admin or Owner, as such deletion is in their sole discretion (subject to any applicable laws). You should know that, for technical reasons, content you delete may persist for a limited period of time in backup copies (though it will not be visible to other users).

5. PAID FOR SERVICES

5.1. SmartUp’s Licence Plans offer various benefits and user rights for managing Communities. Please contact us to help you.

5.2. Once you have paid for a Licence Plan the Services are non-refundable and SmartUp reserves the right to change our Licence Plans and prices at any time in the future.

5.3. If you want to alter the Licence Plan you are under, and you have already paid up for the year or month ahead, you may not change. If you wish to change or cancel your payment method you should contact us support@smartup.io.

6. TERM AND TERMINATION

6.1. Term: These Terms will continue in full effect unless and until your account or these Terms are terminated. Please check the details of your Licence Plan. Monthly licences will renew automatically for additional months, and Licence Plans paid annually will automatically renew for additional years. Please contact us support@smartup.io for more details.

6.2. Termination: SmartUp or You may terminate this Agreement at any time subject to the terms of your Licence Plan. Where we elect to terminate your account as a result of a breach of these Terms, we reserve the right to revoke access rights to any Community Users of any Communities you have established without incurring any liability and without any obligation to provide a refund. Prolonged inactivity may also mean we delete an account.

6.3. If you are Network User and wish to stop using the Services, please contact your Owner/Admin.You acknowledge and agree that Network may remove, adjust, alter or terminate your access to the Services or Your Content in its sole discretion. In such a case, your right to access and use the Services and Your Content is immediately ended, and any licences granted to you or by you are terminated. If you wish to continue using SmartUp, you can do so by creating your own Personal Account. On termination, if you wish to keep Your Content, you should contact your Admin/Owner and request permission to download Your Content, at your Network’s discretion.

6.4. If you are a Public User, you can terminate your registration at any time by contacting us support@smartup.io. The Content you have submitted/uploaded to SmartUp may still appear on SmartUp following termination of your registration (such as comments or articles). Once your accounts are terminated, we have the right to delete any related Content you have submitted /uploaded to SmartUp.

6.5. If you are a public user, it is your responsibility to download all the content you have created, if you wish so.

6.6. On termination, you lose the right to access or use the Services. The following shall survive termination:

• rights to SmartUp and SmartUp users to further re-share Content and information you shared through the Service on public Communities in accordance with these Terms – none of Your Content posted in open communities will be deleted (per the licence granted to SmartUp);
• our rights to use and disclose your feedback (in anonymised format);
• sections 3, 4, 6, 7 and 8 of these Terms; and
• any amounts owed by either party prior to termination remain owed after termination.

7. LIMITATIONS OF LIABILITY, DISCLAIMERS, AND INDEMNITIES – PLEASE READ CAREFULLY

The parties have relied on these limitations in deciding whether to enter into these Terms and the parties expressly agree to the following risk allocation between the parties.

7.1. DISCLAIMERS: We will use all commercially reasonable efforts to ensure the best SmartUp experience. However, please read carefully each of the below disclaimers.

• YOU ACKNOWLEDGE THAT SMARTUP DOES NOT WARRANT THAT THE SERVICE WILL BE UN-INTERRUPTED, TIMELY, ERROR OR VIRUS FREE, OR SECURE. SMARTUP IS NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SOFTWARE OR HARDWARE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, BUT WITHOUT LIMITATION DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION. SERVICES ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS.

 

• TO THE FULLEST EXTENT PERMITTED BY LAW, SMARTUP DOES NOT GIVE OR MAKE ANY WARRANTY OR REPRESENTATION, CONDITIONS AND ANY OTHER TERMS OF ANY KIND WHICH MIGHT OTHERWISE BE IMPLIED BY STATUTE, COMMON LAW OR LAW OF EQUITY AND FOR ANY LIABILITY INCURRED BY YOU ARISING FROM USE OF SMARTUP’S SERVICES FROM THESE TERMS, INCLUDING WITHOUT LIMITATION FOR ANY DIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, (HOWSOEVER ARISING INCLUDING NEGLIGENCE) LOSS OF USE, LOSS OF DATA, LOSS CAUSED BY A COMPUTER OR ELECTRONIC VIRUS, LOSS OF INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY, WASTED MANAGEMENT OR OFFICE TIME, BREACH OF CONTRACT, OR CLAIMS OF THIRD PARTIES OR OTHER LOSSES OF ANY KIND, EVEN IF SMARTUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSSES ARISING OUT OF OR IN CONNECTION WITH THE USE OF SMARTUP.

 

• IF YOU BECOME DISSATISFIED IN ANY WAY WITH SMARTUP SERVICES OR SOFTWARE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO STOP YOUR USE OF SMARTUP APP AND SITE. YOU HEREBY WAIVE ANY AND ALL CLAIMS ARISING OUT OF YOUR USE OF SMARTUP.

 

• IN THE EVENT SOME JURISDICTIONS DO NOT PERMIT THE DISCLAIMER OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, THESE PROVISIONS MAY NOT APPLY TO YOU. IF ANY PORTION OF THIS LIMITATION IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN OUR AGGREGATE LIABILITY TO YOU (WHETHER YOU ARE AN UNAFFILIATED USER OR A NETWORK) SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).

 

• SMARTUP EXPRESSLY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR THE ACTIONS, YOUR CONTENT, ANOTHER USERS’ CONTENT, INACCURATE CONTENT, INFORMATION OR DATA OF THIRD PARTIES, AND YOU HEREBY RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES AND AGENT FROM ANY CLAIMS OR DAMAGES, KNOWN OR UNKNOWN ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY THIRD PARTIES.

 

• WE RESERVE THE RIGHT TO SUSPEND, WITHDRAW, AMEND, MODIFY, OR VARY THE SERVICE PROVIDED BY SMARTUP WITHOUT NOTICE AND WITHOUT INCURRING ANY LIABILITY TO YOU.

 

• NOTHING IN THESE TERMS LIMIT OR EXCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY OR ANY LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY LAW.

 

7.2.. OUR INDEMNIFICATION TO YOU: We’ll defend or settle, at our option and expense, any third-party claim brought against you to the extent that it’s based on an allegation that your use or possession of the Software as permitted under these Terms infringes a copyright or misappropriates a trade secret of any third party (each, an “IP Claim“), and, subject to no exclusions applying (as detailed under section 7.3 below), we’ll pay all damages and costs (including reasonable legal fees) finally awarded by a court of final appeal attributable to such an IP Claim, provided that you notify us in writing of any such IP Claim as soon as reasonably practicable and allow us to control and reasonably cooperate with us in the defence of any such Claim and related settlement negotiations.

7.3. Indemnity Exclusions: You understand we’ll have no obligation to indemnify you for any IP Claim based on:

• (i) the modification of the Software, unless we were the ones who made the modifications;
• (ii) your use of the Software other than as authorised by these Terms;
• (iii) your failure to use updated or modified Software that we make available to you that would have helped, avoid or mitigate the IP Claim;
• (iv) your failure to stop using the Software after receiving written notice to do so from us in order to avoid further infringement or misappropriation; or
• (v) the combination, operation or use of the Software with equipment, devices, Software, systems, or data that we didn’t supply.

7.4. Right to Ameliorate Damages: If your use of the Services, or in our reasonable opinion is likely to be, subject to an IP Claim we may, at our sole option and at no charge to you (and in addition to our indemnity obligation to you in Section 7.2 above): (i) procure for you the right to continue using the Software; (ii) replace or modify the Software so that it is non-infringing and substantially equivalent in function to the original Software; or, (iii) if options (i) and (ii) above are not commercially practicable, in our reasonable estimation, we can terminate our agreement with you and all licenses granted hereunder (in which event, you will immediately stop using the Software) and refund any applicable fees that you paid us for the then-current license term.

7.5. YOUR INDEMNIFICATION TO US: If we are sued as a result of your use of SmartUp then we have the right to defend or settle the relevant claim as we see fit. If we ask, you will co-operate fully and reasonably as required by us in the defense of any relevant claim. You agree to hold harmless and indemnify us and our officers, directors, employees, agents, representatives and licensors from and against any third party claims, damages (actual and/or consequential), actions, proceedings, demands, losses, liabilities, costs and expenses (including reasonable solicitor’s fees) suffered or reasonably incurred by us arising as a result of, or in connection with:

• your access to and use of SmartUp;
• the uploading or submission of Your Content to SmartUp by you;
• any breach of these Terms by you; or
• your conduct, other than in accordance with the Terms or any applicable law or regulation (“Claim”).

SmartUp retains the exclusive right to settle, compromise and pay any and all Claims or causes of action which are brought against us without your prior consent.

8. FINAL POINTS

Governing law: These Terms and any dispute or claim arising out of or in connection with it or its subject matter (including non-contractual disputes or claims) shall be governed by English law. You agree to resolve any claim exclusively in the courts of England and Wales. You agree that you will not file or participate in a class action against us.

Any Feedback: We welcome any feedback on our Services. You assign to us all rights, titles, and interests in and to any feedback or suggestions that you may give us in relation to SmartUp, without any right to compensation. You represent and warrant authority to bind your Network, if applicable, to this provision.

Process for changes to Terms: We reserve the right to modify, amend or change the Terms at any time. If we do this, any such changes will be posted on this page and the effective date listed below amended. At times, we may send you an email notifying you of the change. If you do not accept any change to the Terms, you must stop using SmartUp. If you continue to use SmartUp, your actions shall be deemed acceptance of the revised Terms and you will be legally bound by the updated Terms. If you are a Public User you agree to accept any legal notices via your email inputted for registration on sign up. If you are a Network User, you agree to accept any legal notices via your work domain email inputted for registration on sign up.

Assignment: You may not assign or transfer any obligations or rights without our prior written consent. We have the right to assign this agreement and any rights or obligations without providing notice to you.

Wavier and Enforceability: If we fail to enforce any term of these Terms, or fail to respond to a breach by you, it will not be considered a waiver. If any of the Terms are declared to be illegal, invalid or otherwise unenforceable by a court of a competent jurisdiction, then to the extent that term is illegal, invalid or unenforceable, it shall be severed and deleted from the Terms. The remainder of the Terms shall remain in full force and effect.

Outside Events: We are not liable for any delay or failure to perform our obligations where the failure is as a result of anything outside of our reasonable control.

Entire Agreement: The Terms set out the entire agreement and understanding between us and you in relation to your use of SmartUp, and this super-cedes all previous agreements, representations, and arrangements between us (either oral or written). Any changes to these Terms must be in writing signed by both parties. No agency partnership, employment or joint venture is created by these Terms. Nothing in the Terms shall confer or purport to confer on any other third party, any benefit or the right to enforce any term of the Terms and the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Terms.