SMARTCAT TERMS OF SERVICE
Current version. Last updated on 21.07.2022.
You are eligible to use the Platform if you are 16 years and older. However, it is prohibited to create a Supplier profile for an individual who has not reached the age of 18 for the purposes of performing a Service Task. An individual who has not reached the age of 18 but is not younger than 16 years old may use the Platform for educational and non-commercial purposes only. Please do not submit any personal data of children below the age of 16 to the Platform unless express permission of their parents or legal guardians was duly obtained.
XVII. CALIFORNIA USERS AND RESIDENTS
I. GENERAL PROVISIONS
A. Smartcat means either Smartcat Platform Inc., a legal entity registered under the laws of the United States of America, or Smartcat Europe B.V., a legal entity registered in the Netherlands with registered address at Rouboslaan 36 B, 2252 TR, Voorschoten, the Netherlands, registration № 859832880, depending on what further agreement you are becoming a party to as described below.
IF YOU REGISTER OR ALREADY REGISTERED A CUSTOMER ACCOUNT ON SMARTCAT PLATFORM, PLEASE ALSO SEE CUSTOMER AGREEMENT LOCATED AT HTTPS://WWW.SMARTCAT.COM/CUSTOMER-AGREEMENT/, WHICH REFLECTS THE CONDITIONS OF OUR COOPERATION.
IF YOU REGISTER OR ALREADY REGISTERED A SUPPLIER ACCOUNT ON SMARTCAT PLATFORM, PLEASE ALSO SEE SUPPLIER AGREEMENT LOCATED AT HTTPS://WWW.SMARTCAT.COM/SUPPLIER-AGREEMENT/, WHICH REFLECTS THE CONDITIONS OF OUR COOPERATION.
IF YOU ARE A PARTY TO A SEPARATE OFFLINE VERSION OF AGREEMENTS ABOVE, THEN SUCH OFFLINE VERSION AGREEMENTS PREVAIL.
C. We reserve the right at all times to remove or modify any part of this TOS unilaterally. We shall notify you by e-mail or via the Platform about the amended and restated TOS to ensure that you stay informed of any such amendments and restatements. Your use of the Platform after the date of notification or the effective date of changes indicated in the notification shall mean your acceptance of the amended and restated TOS, unless you accepted them otherwise earlier. In case you use a corporate account, only the administrator of that corporate account will be notified. The administrator of the corporate account and not Smartcat is solely responsible for further notification of changes to other members of the corporate account.
D. By using the Platform, User: (i) agrees to be bound by this TOS; (ii) acknowledges and agrees that User is not relying on any representation, guarantee, or statement to access the Platform or to utilize Supplementary Service, other than as expressly set forth in TOS; and (iii) represents and warrants that User is lawfully able to enter into contracts. In addition, the person agreeing to this TOS on behalf of a business or other legal entity hereby represents and warrants that such person authorized and lawfully able to bind that business or entity to this TOS. If you don’t want to be bound by the terms hereof you shall stop using the Platform and delete all your existing accounts on the Platform. Your continued use of the Platform means you complete acceptance of this Agreement.
E. The Platform represents a website and technology platform for translation workflow automation allowing a registered User to automate translation processes and make use of technologies available at the Platform. The “User” means any person accessing the Platform. The Platform provides its Users to ability to exploit free features of the Platform and provides the Users registered as Suppliers and Customers to render and to exploit translation services on the Platform (the “Translation Services”). Smartcat may also provide access to additional Platform services including but not limited to text translation tools (the “Supplementary Services” or "Subscription Services"), which Supplementary Services may be added or removed by a User in such User’s account on the Platform.
F. You are free to use the Platform for your own internal purposes except for the Supplementary Services. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferrable, freely revocable license to use the Platform for your personal use. We reserve all rights not expressly granted herein in the Platform.
A. To access and use the Platform you must be a legal entity or an individual who can enter into legally binding contracts.
B. You must not access and use the Platform if you reside or have business activities in the territory included in the economic and financial sanctions lists maintained by OFAC and/or EU, or are subject to such sanctions in any other way, or if we have previously banned you from accessing and using the Platform and/or closed your account on the Platform.
D. We may, but are under no obligation to, subject you to an extensive vetting process before you can register on the Platform and during your use of the 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, as well as our internal policies without any notice.
E. We cannot confirm that each person using the Platform is who he, she or it 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 Platform.
F. When interacting with the Platform 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 Platform and you hereby release Smartcat and its affiliates or licensors from any liability related thereto. Smartcat, its affiliates and licensors will not be liable for any claim, injury or damage arising in connection with your use of the Platform.
III. BILLING AND PAYMENT
A. The fee for each Supplementary Service purchased on the Platform and fee currency is indicated in the specific section of the Platform. The fee is paid to Smartcat by payment means available at the Platform or as agreed otherwise. The User may also accept Supplementary Services orders by email and such orders shall contain specific terms of payment and other agreed terms.
B. Smartcat has the right to seek reimbursement from you, and you will reimburse Smartcat, if Smartcat discovers a fraudulent transaction, erroneous or duplicate transaction.
C. To the maximum extent available pursuant to applicable law you hereby waive any right to seek refund for any Supplementary Service purchased on the Platform.
D. The Platform operates in various currencies. Smartcat is not responsible for currency fluctuations that occur when billing or crediting a credit or debit card denominated in a currency other than the currency indicated on the Platform, nor is Smartcat responsible for currency fluctuations that occur when sending payment via wire transfer, check or automated clearinghouse to and from User's bank account, credit card account, e-wallet account or any other payment method. Foreign currency conversion is processed at a foreign currency conversion rate which is set in the Platform. The exchange rate is updated on a daily basis, but may not be identical to the real-time market rate.
E. The fees for Supplementary Services are indicated in User’s account on the Platform or on Smartcat website. These fees may be changed by Smartcat at its own discretion with contemporaneous notice thereof unless otherwise provided in the separate agreement between you and Smartcat.
F. By selecting ACH debit or credit card as its preferred payment method and by linking User’s bank account or credit card to the online payment service integrated with the Platform, the User authorizes Smartcat to automatically debit the bank account or credit card provided by User for the amounts owed for Supplementary Services.
A. Smartcat reserves the right, in Smartcat’s sole discretion, to refuse, suspend, or terminate User’s access to the Platform and any Services by providing the User with a written or email notice of such termination in case of (a) reasonable demand of state authority (b) in the event User materially violates any limitations under section II (B) below, provided that User does not cure such violation within 14 days after receiving a notice on the violation (c) in case User violates Suppliers solicitation limitations provided that User does not cure such violation within 14 days after receiving a notice on the violation.
B. If Smartcat terminates User’s access to the Platform for violation of this TOS, User will not be entitled to any refund of unused balance in User’s account. If Smartcat terminates User’s account for any reason, the User is prohibited from registering and creating a new account under User’s name, a fake or borrowed name, or the name of any third party, unless Smartcat gives express consent thereto. In addition to terminating or suspending User’s account, Smartcat reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive relief.
C. Upon termination, all provisions of this TOS, which, by their nature, shall survive termination, including, without limitation, warranty disclaimers, indemnity and limitations of liability.
A. The Platform may contain profiles, e-mail systems, blogs, message boards, chat areas, newsgroups, forums, communities and/or other message or communication facilities (“Public Areas”) that allow a User to communicate with other Users. User may only use such communication areas to send and receive messages and materials that are relevant and proper to the applicable forum.
B. User agrees not to engage in any of the following conduct on the Platform:
1. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of others, including Smartcat staff.
2. Publish, post, upload, distribute or disseminate any profane, defamatory, infringing, obscene or unlawful topic, name, material or information.
3. Upload content that is offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
4. Use the Platform for any illegal purpose, including, but not limited to posting materials in violation of local, state, national, or international law.
5. Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Platform, except as expressly authorized by this TOS.
6. Upload files that contain software or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third party.
7. Upload files that contain viruses, Trojans, corrupted files, or any other similar software that may damage the operation of another computer.
8. Post or upload any content to which User has not obtained any necessary rights or permissions to use accordingly.
9. Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Platform or features that enforce limitations on the use of the Platform.
10. Advertise or offer to sell any goods or services for any commercial purpose through the Platform which are not relevant to the services offered through the Platform.
11. Use the Platform to solicit for any other business, website or service, or otherwise contact Users for employment, contracting or any purpose not related to the use of the Platform as set forth herein.
12. Conduct or forward surveys, contests, pyramid schemes, or chain letters.
13. Impersonate another person or a User or allow any other person or entity to use User’s identification in order to access User’s account and use any Services unless otherwise provided in the agreement between Smartcat and the User.
14. Restrict or inhibit any other User from using and enjoying the Public Areas.
15. Imply or indicate that any statements User makes are endorsed by Smartcat, without Smartcat’s prior written consent.
16. Use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index any portion of the Platform.
17. Reverse engineer any portion of the Platform.
18. Hack or interfere with the Platform, its servers or any connected networks or disobey any requirements, procedures, policies or regulations of networks connected to the Platform.
19. Adapt, alter, license, sublicense or translate the Platform for User’s own personal or commercial use.
20. Remove or alter, visually or otherwise, any copyrights, trademarks or proprietary marks or rights owned by Smartcat.
21. Upload content that provides materials or access to materials that exploit people under the age of 18 in an abusive, violent or sexual manner.
22. Use the Platform to collect usernames and/or email addresses of Users by electronic or other means.
23. Register under different usernames or identities, after User’s account has been suspended or terminated.
24. To circumvent the Platform or any associated fees which shall be done via the Platform. For the avoidance of doubt all payments for the Translation Services from or to the Users shall be made via the Platform, unless Users were in contractual, business, employment relationships before these Users engaged into provision/receipt of Translation Services via the Platform.
25. Creating and using multiple Customer or Supplier accounts by one User, including for the reasons of distribution of Smartwords limits or any other limits indicated in the description of the Supplementary services on the Smartcat website, unless such User received a specific prior approval by Smartcat. In the event of using multiple accounts, Smartcat reserves the right to treat such accounts as a single account and charge the User with respectable fees according to Smartcat pricing or distribute single account limit to multiple accounts of the User.
C. The Platform also provides functionalities, tools and API integration and interoperability features as set forth in the Smartcat API documentation available at https://www.smartcat.com/integrations/ , to enable Customer to create custom integrations with the Platform as a Supplementary Service. Customer shall be solely responsible for enabling the interoperability of features with the Platform.
VI. USER CONTENT
A. Users are solely responsible for their content uploaded on the Platform. Smartcat is not responsible for the content uploaded by a specific User, however Smartcat reserves the right to investigate and take appropriate legal action against anyone who, in Smartcat’s sole discretion, violates this provision, including, without limitation, removing the offending content from the Platform, suspending or terminating the account of such violators and reporting User to the law enforcement authorities.
B. Smartcat does not display, reproduce and distribute Users’s content to or with any third parties apart from other users authorised by the User who owns the content and Smartcat’s affiliates, subsidiaries and suppliers who are responsible for functional maintenance of the Platform. To the extent it is necessary in order for Smartcat to provide the User with any of the Services and features of the Platform and in order to enable usage of the Platform, the User hereby grants Smartcat, its affiliates, subsidiaries and the aforementioned suppliers, a non-exclusive, royalty-free, transferable right to use, display, reproduce and distribute such content exclusively for the purpose of maintaining and enhancing the functionality of the Platform features. Any and all content, data or information that the User uploads or makes available to or via the Platform is secure and owned solely by such User subject to content ownership rights regulated under supplier agreement https://www.smartcat.com/supplier-agreement/ and customer agreement https://www.smartcat.com/customer-agreement/.
C. Any User that uploads its content on the Platform acknowledges and agrees that Smartcat may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (i) comply with legal processes, applicable laws or government requests; (ii) enforce this TOS; (iii) respond to claims that any content violates the rights of third parties; or (iv) protect the rights, property, or personal safety of Smartcat or the public.
VII. DATA PROTECTION
A. User understands that the technical processing and transmission of the Platform, including such User’s content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
B. User’s content is encrypted as follows: Platform uses an HTTPS/TLS protocol to protect data in transit between User’s computer and Smartcat servers, and a 256-bit Advanced Encryption Standard (AES) to protect data at rest.
C. The Parties of this Agreement shall be bound to Smartcat Data Processing Agreement located at https://www.smartcat.com/dpa/, incorporated herein by reference and being an integral part of this Agreement.
D. You hereby provide written authorization to Smartcat to transfer your personal data collected by Smartcat from you pursuant to providing the Translation Services or Supplementary Services to third party service and analytics providers for the purpose of providing, analysing and modifying the Translation Services, Supplementary Services and the Platform, including cross-border transfers outside European Economic Area.
VIII. INTELLECTUAL PROPERTY
A. 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 Platform is owned by Smartcat, excluding any User-generated content licensed to Smartcat pursuant to this TOS. Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Smartcat owns 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. User may not copy, download, use, redesign, reconfigure, or retransmit anything from the Platform without Smartcat’s 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 Smartcat prior permission and, if applicable, the holder of the rights to the User content.
B. Smartcat service marks and trademarks, including, without limitation, Smartcat logos are service marks owned by Smartcat. Any other trademarks, service marks, logos and/or trade names appearing on the Platform are the property of their respective owners. User may not copy or use any of these marks, logos or trade names without the express prior written consent of the owner. User acknowledges that Smartcat may use User's trademarks, service marks, logos and/or trade names for marketing purposes.
IX. DISCLAIMER OF WARRANTY
A. USER’S USE OF THE PLATFORM IS AT USER’S SOLE RISK. ALL SERVICES ON THE PLATFORM, INCLUDING SUPPLEMENTARY SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SMARTCAT EXPRESSLY DISCLAIMS 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.
B. UNLESS OTHERWISE PROVIDED IN A SEPARATE AGREEMENT WITH SMARTCAT, SMARTCAT MAKES NO WARRANTY THAT (I) THE PLATFORM WILL MEET USER’S REQUIREMENTS, (II) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY (UP-TO-DATE), OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE 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 USER THROUGH THE PLATFORM WILL MEET USER’S EXPECTATIONS.
C. THE PLATFORM IS SECURED BY TAKING APPROPRIATE ADMINISTRATIVE, PHYSICAL, AND TECHNICAL MEASURES FOR PROTECTION OF THE SECURITY, CONFIDENTIALITY AND INTEGRITY OF USER DATA, INCLUDING, BUT NOT LIMITED TO USING CERTIFIED SECURED DATA PROTOCOLS AND ENCRYPTING SENSIBLE DATA (“SMARTCAT SECURITY”). 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 THE 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.
X. LIMITATION OF LIABILITY
A. IN NO EVENT SHALL SMARTCAT AND ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, OWNERS, INFORMATION PROVIDERS, AGENTS, LICENSEES, LICENSORS (“RELEASED PARTIES”) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA) WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), EQUITY OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PLATFORM, INCLUDING, WITHOUT LIMITATION, ANY ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAYS IN TRANSMISSION, ETC.
B. UNLESS OTHERWISE PROVIDED IN A SEPARATE AGREEMENT WITH SMARTCAT, IN NO EVENT WILL SMARTCAT’S TOTAL LIABILITY TO A USER FOR DAMAGES, LOSSES OR CAUSES OF ACTION RESULTING FROM THE USE OF THE PLATFORM UNDER THIS TOS EXCEED $100.
C. 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 A USER. IF A USER IS DISSATISFIED WITH ANY PORTION OF THE PLATFORM, USER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE THE USE OF THE PLATFORM.
A. If the event of a dispute between Users, each User agrees to 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.
B. USER HEREBY WAIVES CALIFORNIA CIVIL CODE §1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WITH RESPECT TO ANY SUCH DISPUTE BETWEEN USERS, WHICH PROVIDES: “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.”
A. User agrees to indemnify, defend and hold Released Parties harmless from and against any and all liabilities, claims, costs, including reasonable attorneys’ fees, incurred by the Released Parties in connection with any third party demand, claims, action, suit, or loss arising as a result of, in connection with, or for (A) any breach by User of this TOS or any use by User of its account or the Platform; (B) any fraud or manipulation by User; (C) infringement based on information, data, files or other content submitted by User; (D) credit card fraud based on any information submitted by User; or (E) breach of payment obligations. User agrees to use User’s best efforts to cooperate with Smartcat in the defense of any demand, claim, action or suit. Smartcat reserves the right to assume the exclusive defense of any matter subject to indemnification by User at Smartcat’s own expense.
XIII. NO WAIVER
A. No waiver of any term of this TOS shall be deemed a further or continuing waiver of such term or any other term, and Smartcat’s failure to assert any right or provision under this TOS shall not constitute a waiver of such right or provision.
A. This TOS, and any rights and licenses granted hereunder, may not be transferred or assigned by User, but may be assigned by Smartcat without restriction or notice.
XV. THIRD PARTY LINKS
A. The Platform may contain links to third-party websites, advertisers, services, special offers, or other events or activities (“Third Party Services”) that are not owned or controlled by Smartcat. Smartcat does not endorse or assume any responsibility for any such Third Party Services or their operators. If User accesses a Third Party Service from the Platform, User does so at User’s own risk, and User understands that this TOS does not apply to User’s use of such Third Party Service. User expressly releases Smartcat from any and all liability arising from User’s use of any Third Party Service. Additionally, User’s dealings with or participation in Third Party Services found on the Platform, including payment and delivery of goods, and any other terms (such as warranties) are solely between User and the operators of such Third Party Services. User agrees that Smartcat shall not be responsible for any loss or damage of any sort relating to User’s dealings with such Third Party Services operators.
A. Smartcat welcomes User feedback about Supplementary Services and the Platform. Unless otherwise expressly declared, any communications sent to us by Users are deemed to be submitted on a non-confidential basis. User agrees that Smartcat may decide to publicize such contents at its own discretion. User agrees to authorize Smartcat to make use of such contents for free, and revise, modify, adjust and change contextually, or make any other changes as Smartcat may deem appropriate.
XVII. CALIFORNIA USERS AND RESIDENTS
A. Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Smartcat must be addressed to our agent for notice and sent via certified mail to: Smartcat Platform Inc., 177 Huntington Ave Ste 1703, PMB 50985, Boston, Massachusetts 02115-3153 US.
B. California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
XVIII. COPYRIGHT COMPLAINTS
A. We respect the intellectual property of others and expect you to do the same. If you believe, in good faith, that any content available on the Platform infringes any intellectual property rights of any third party, please send the following information to the Smartcat’s copyright agent at firstname.lastname@example.org:
1. A description of the copyrighted work that you think has been infringed, including the URL (Internet address) or another specific location on the Platform where the material you think to be infringed is located. Include enough information to allow us to locate the materials and explain why you think an infringement has taken place;
2. A description of the location where the original or an authorized copy of the copyrighted work exists – for example, the URL (Internet address) where it is posted or the name of the book in which it has been published;
3. Your address, telephone number and e-mail address;
4. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law;
5. A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you know the real copyright owner or authorized to act on the copyright owner's behalf;
6. An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
A. 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 Boston, Massachusetts, 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.
B. If you are registered and/or reside in any other location, any Dispute 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.
C. 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.
D. 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.
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.
E. This clause below is applicable to you only if you are registered and/or reside in North America, South America or Japan:
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.
If the Class Action Waiver of this Arbitration Provision is deemed to be unenforceable, you and Smartcat agree that this Arbitration provision is otherwise silent as to any party's ability to bring a class, collective or representative action in arbitration.
XX. GOVERNING LAW
A. If you are registered and/or reside in North America, South America or Japan, the laws of the State of Massachusetts, excluding its conflicts-of-law rules, govern this Agreement. If you are registered and/or reside in any other location, the laws of England and Wales, excluding its conflicts-of-law rules, govern this Agreement.
XXI. CONTACT US
A. These Terms of Service contain our standard terms. If you wish to have any specific terms, please contact us at email@example.com. For advanced subscription plan, please go to https://www.smartcat.com/pricing/.
B. Should you wish to contact us with any questions or claims with respect to the Platform or in case of technical or performance issues, please visit our website at www.smartcat.com or email us.