Terms of Use


Please read these terms of use (“Terms”) carefully before using this website (“Site”). Using this Site indicates that you have read and accept these Terms. If you do not accept these Terms, you are not authorized to use this Site. These Terms govern your use of the Site, any content (such as text, data, information, software, graphics or photographs) that Smartwell and its subsidiaries (collectively, "Smartwell") may make available through the Site (collectively, “Materials”) and any services that Smartwell may provide through the Site (collectively, “Services”). The Site, Materials and Services are referred to in these Terms collectively as the “Smartwell Websites”.

Use of Smartwell Websites

Except as set forth in “Other agreements; software, services or access”, below, Smartwell authorizes you to use the Smartwell Websites only for your own personal, non-commercial purposes. Use of the Smartwell Websites for any public or commercial purpose (including, without limitation, on another site or through a networked computer environment) is strictly prohibited. If you make copies of any of the Materials, you must retain on any such copies all copyright and other proprietary notices contained in the original Materials. You may not modify, publicly display, publicly perform, or distribute the Materials. As between you and Smartwell, Smartwell owns the Smartwell Websites. The Smartwell Websites is protected under international copyright laws. Any unauthorized use of the Smartwell Websites may violate copyright, trademark, and other laws.

Access

You are responsible for obtaining and maintaining all equipment and services needed for access to and use of the Smartwell Websites and for paying all charges related thereto. When you register to open an account anywhere on the Smartwell Websites, or when you contact Smartwell through the Smartwell Websites for the purpose of receiving products or services, Smartwell may collect certain personal information about you. Smartwell’s use of such information is governed by the provisions of the Smartwell Online Privacy Statement for the Site. You agree to provide true, accurate, current, and complete information (and, for as long as you continue to use your Smartwell Websites account, to update such information to keep it true, accurate, current, and complete). You are responsible for maintaining the confidentiality of your Smartwell Websites password and you are solely responsible for all activities that occur under your password. You agree to notify Smartwell immediately of any unauthorized use of your password or any other breach of security related to the Smartwell Websites. Smartwell reserves the right to require you to change your password if Smartwell believes that your password no longer is secure. Access to Smartwell Websites granted under other separately executed agreements by Smartwell and You shall supersede the terms contained in this Section.

Prohibited Uses

You agree not to use the Smartwell Websites (including, without limitation, any Materials or Services you may obtain through your use of the Smartwell Websites): (a) in a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law (each a “Law”); (b) to stalk, harass, or harm another individual; (c) to impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity; or (d) to interfere with or disrupt the Smartwell Websites or servers or networks connected to the Smartwell Websites. You further agree not to (e) use any data mining, robots, or similar data gathering or extraction methods in connection with the Smartwell Websites; or (f) attempt to gain unauthorized access to any portion of the Smartwell Websites or any other accounts, computer systems, or networks connected to the Smartwell Websites, whether through hacking, password mining, or any other means.

Termination

Except as set forth in “Other agreements; software, services or access”, below, Smartwell may terminate, suspend, or modify your registration with, or access to, all or part of the Smartwell Websites, without notice, at any time and for any reason. You may discontinue your participation in and access to the Smartwell Websites at any time. If you breach any of these Terms, your authorization to use the Smartwell Websites automatically terminates and you must immediately destroy any downloaded or printed Materials (and any copies thereof).

Disclaimers

The Smartwell Websites is provided "As Is" and “With All Faults” and the entire risk as to the quality and performance of the Smartwell Websites is with you. Should the Materials or Services prove defective, you, and not Smartwell, assume the entire cost of all necessary servicing and repair. Smartwell expressly disclaimd all warranties of any kind, whether express, implied or statutory, with respect to the Smartwell Websites (including, but not limited to, any implied or statutory warranties of merchntability, fitness for a particular use or purpose, title and non-infringement of intellectual property rights). Without limiting the generality of the foregoing, Smartwell makes no warranty that the Smartwell Websites will meet your requirements or that will be uninterrupted, timely, secure or error free or that defects in the Smartwell Websites will be corrected. Smartwell makes no warranty as to the results that may be obtained from the use of the Smartwell Websites or as to the accuracy or reliability of any information obtained through the Smartwell Websites. No advice or information, whether oral or written, obtained by you through the Smartwell Websites or from Smartwell, its parents, subsidiaries or other affiliated companies or its or their suppliers (or the respective officers, directors, employees or agents of any such entities) (collectively, “The Smartwell Parties”) shall create any warranty. Smartwell disclaims all equitable indemnities.

Limitation of Liability

In no event will any of the Smartwell Parties be liable for (a) any indirect, special, consequential, punitive or exemplary damages or (b) any damages whatsoever (including without limitation, those resulting from loss of revenues, lost profits, loss of goodwill, loss of use, business interruption or other intangible losses), arising out of or in connection with the Smartwell Websites (including without limitation, use, inability to use or the results of use of the Smartwell Websites), whether such damages are based on warranty, contract, tort, statute or any other legal theory and even if any Smartwell Party has been advised (or should have known) of the possibility of such damages.

Exclusions and Limitations

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the above disclaimers and limitations of liability may not apply to you. To the extent that any Smartwell Party may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of the Smartwell Party’s liability shall be the minimum permitted under such applicable law.

Other Agreements; Software, Services or Access

Smartwell may provide products (such as hardware or software) services (such as hardware maintenance or repair or software maintenance, installation, or training) or access to Smartwell Websites under the terms of a separate agreement between you and Smartwell (each, an “Other Agreement”). Smartwell’s obligations with respect to any product, service, or access that it makes available to you under any Other Agreement shall be governed solely by the Other Agreement under which such product or service is provided and these Terms shall not be deemed or construed to alter the terms of such Other Agreements.

For example, the use of any software that is made available to download from the Smartwell Websites ("Software") is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software ("License Agreement"). You may not install any Software that is accompanied by or includes a License Agreement unless you first have agreed to the License Agreement terms. If no end user license agreement accompanies or is included with the Software, then such Software shall be deemed to be Materials hereunder and these Terms shall govern your use of such Software. Further reproduction or redistribution of any software is expressly prohibited, unless such reproduction or redistribution is expressly permitted by the License Agreement accompanying or included with such.

Modifications to Smartwell Websites

Smartwell reserves the right to modify, suspend, or discontinue the Smartwell Websites at any time without notice to you. For example, Smartwell may make changes to the Materials and/or Services, or to the products and prices described in them, at any time without notice. The Materials and Services may be out of date and Smartwell makes no commitment to update the Materials and Services whatsoever. Information published on a Site may refer to products, programs, or services that are not available in your country. Consult your local Smartwell business contact for information regarding the products, programs, and services that may be available to you.

User Submissions

Certain areas of the Smartwell Websites (e.g., chat rooms or customer ratings and review areas) may permit you to submit feedback, information, data, text, software, music, sound, photographs, graphics, video, messages, or other materials (each, a “User Submission”). By submitting a User Submission, you grant to Smartwell an irrevocable, perpetual, transferable, non-exclusive, fully-paid, worldwide, license (sublicensable through multiple tiers) to (a) use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display your User Submissions (or any modification thereto), in whole or in part, in any format or medium now known or later developed and (b) use (and permit others to use) your User Submission in any manner and for any purpose (including, without limitation, commercial purposes) that Smartwell deems appropriate in its sole discretion (including, without limitation, to incorporate your User Submission or any modification thereto, in whole or in part, into any technol ogy, product, or service). Smartwell reserves the right to display advertisements in connection with User Submissions and to use User Submissions for advertising and promotional purposes. Smartwell may, but is not obligated to, pre-screen User Submissions or monitor any area of the Smartwell Websites through which User Submissions may be submitted. You agree that you are solely responsible for all of your User Submissions. Smartwell is not required to host, display, or distribute any User Submissions on or through the Smartwell Websites and may remove at any time or refuse any User Submissions for any reason. Smartwell is not responsible for any loss, theft, or damage of any kind to any User Submissions. Smartwell does not want to receive any User Submission that is confidential. You understand and agree that any User Submission will be considered non-confidential and non-proprietary and that Smartwell will be free to disclose your User Submission to any third party absent any obligation of confidence on the part of the recipient. Smartwell does not guarantee that you will have any recourse through Smartwell or any third party to edit or delete any User Submission you have submitted.

By submitting any User Submission, you represent and warrant that:
(a) you are at least 14 years old;
(b) you own all rights in your User Submissions (including, without limitation, all rights to the audio, video, or digital recording and the performance contained in your User Submissions) or, alternatively, you have acquired all necessary rights in your User Submissions to enable you to grant to Smartwell the rights in your User Submissions described herein;
(c) you have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of your User Submissions;
(d) you are the individual pictured and/or heard in your User Submissions or, alternatively, you have obtained permission from each person (including consent from parents or guardians for any individual under the age of eighteen (18)) who appears and/or is heard in your User Submissions to grant the rights to Smartwell described herein;
(e) your User Submissions do not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
(f) you voluntarily agree to waive all "moral rights" that you may have in your User Submission;
(g) any information contained in your User Submission is not known by you to be false, inaccurate, or misleading;
(h) your User Submission does not violate any Law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
(i) your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another’s privacy;
(j) you were not and will not be compensated or granted any consideration by any third party for submitting your User Submission;
(k) your User Submission does not incorporate materials from a third party web site, or addresses, email addresses, contact information, or phone numbers (other than your own);
(l) your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
(m) your User Submission does not contain any information that you consider confidential, proprietary, or personal; and
(n) your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.

Links to Third-Party Websites

Links on the Smartwell Websites to third-party websites are provided solely as a convenience to you. If you use these links, you will leave the Smartwell Websites. Smartwell is not obligated to review such third-party websites, does not control such third-party websites, and is not responsible for any such third-party websites (or the products, services, or content available through the same). Thus, Smartwell does not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If you decide to access any of the third-party websites linked to from the Smartwell Network, you do this entirely at your own risk.

Linking to This Site

You may create links to this Site from other websites, but only in accordance with the following terms and in compliance with all applicable laws.

Absent Smartwell’s written authorization otherwise, a website that links to this Site:
(a) may link to, but shall not replicate, any Materials (including any Smartwell logo);
(b) shall not create a browser or border environment around any Materials;
(c) shall not imply that Smartwell endorses such website or any products, services, or content available through such website;
(d) shall not misrepresent its relationship with Smartwell;
(e) shall not present false or misleading information about Smartwell, its products, or its services;
(f) shall not contain content that could be construed as distasteful, offensive, or controversial; and
(g) shall contain only content that is appropriate for all age groups.

Trademarks

Smartwell and any other product or service name or slogan or logo contained in the Smartwell Websites are trademarks of Smartwell and its suppliers or licensors and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Smartwell or the applicable trademark holder. Ownership of all such trademarks and the goodwill associated therewith remains with Smartwell or the applicable trademark holder. You may not use any metatags or any other "hidden text" utilizing any name, trademark, or product or service name of Smartwell without Smartwell’s prior written permission. In addition, the look and feel of the Site (including all page headers, custom graphics, button icons, and scripts) is the service mark, trademark, and/or trade dress of Smartwell and may not be copied, imitated, or used (in whole or in part) without Smartwell’s prior written permission. Reference to any products, services, processes, or other information, by trade name, trademark, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by Smartwell.

Indemnification

You agree to indemnify, defend, and hold harmless the Smartwell Parties from and against any and all claims, liabilities, damages, losses, costs, expenses, or fees (including reasonable attorneys’ fees) that such parties may incur as a result of or arising from your (or anyone using your account’s) violation of these Terms. Smartwell reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with Smartwell’s defense of such claim.

Electronic Communications

When you visit the Site or send e-mails to Smartwell, you are communicating with Smartwell electronically. We may respond to you by e-mail or by posting notices on the Site. You agree that all such notices, disclosures, and other communications that Smartwell provides to you electronically satisfy any legal requirement that such communications be in writing.

General

These Terms, together with any additional terms to which you agree when using particular elements of the Smartwell Websites, constitute the entire and exclusive and final statement of the agreement between you and Smartwell with respect to the subject matter hereof, superseding any prior agreements or negotiations between you and Smartwell with respect to such subject matter. The Smartwell Parties are third party beneficiaries with respect to the provisions in these Terms that reference them. The failure of Smartwell to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, you nevertheless agree that the court should endeavor to give effect to the intentions of Smartwell and you as reflected in the provision, and that the other provisions of these Terms remain in full force and effect. The section titles in these Terms are for convenience only and have no legal or contractual effect. These Terms shall remain in full force and effect notwithstanding any termination of your use of the Smartwell Websites. These Terms will be interpreted without application of any strict construction in favor of or against you or Smartwell. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Smartwell without restriction.

Modifications to these Terms

Smartwell may, in its sole and absolute discretion, change these Terms from time to time. Smartwell will post notice of such changes on the applicable Site. If you object to any such changes, your sole recourse shall be to cease using the Smartwell Websites. Continued use of the Smartwell Websites following notice of any such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. Certain provisions of these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of the Smartwell Websites and, in such circumstances, the expressly-designated legal notice or term shall be deemed to be incorporated into these Terms and to supersede the provision(s) of these Terms that are designated as being superseded.

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