GENERAL
These Terms of Use, and our Privacy Policy, as each is amended from time to time, apply to you when you view, access or otherwise use the web site located at www.besmartee.com (the “Website”). The Website is owned by BeSmartee Inc. (“BeSmartee”), which is headquartered in Huntington Beach, CA. For the purposes of these Terms of Use, the terms “we,” “us” and “our” refer to BeSmartee and “you” or “your” refer to a user of this Website. (a) Only authorized users who have entered into a separate license agreement with BeSmartee may use our products and services. These Terms of Use (“Terms”) govern your use of the Website only, but do not authorize you to access or use our proprietary mortgage industry software. If you are interested in requesting a demo of our proprietary software, please contact us. All site visitors are subject to these Terms of Use and must be over the age of 18. By accessing or using the Website, you are acknowledging that you are over 18 years of age, and that you have read, understand and agree without limitation or qualification to be bound by these Terms. If you do not agree with these Terms or are not over the age of 18, you do not have the right to access or otherwise use the Website and, accordingly, you should not do so. BeSmartee reserves the right to modify these Terms from time to time without notice.
PRIVACY POLICY
In addition to these Terms, you use of and access to the Website is also subject to our Privacy Policy, which is incorporated by reference herein. Our Privacy Policy contains additional terms relating to our potential collection, use and disclosure of your personal information as a site visitor. You agree that you have read, agreed to and understand BeSmartee’s complete Privacy Policy.
DISCLAIMER OF WARRANTY, LIMITATION OF LIABILITY AND INDEMNIFICATION
(a) No Warranty. THE WEBSITE MAY CONTAIN ERRORS AND DEFECTS OR MAY SUFFER INTERMITTENT DOWNTIME AND IS PROVIDED “AS IS”, “AS-AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, BESMARTEE, AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS (COLLECTIVELY REFERRED TO AS ” BESMARTEE” FOR THE PURPOSES OF THIS SECTION) HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE WEBSITE, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, THAT THE WEBSITE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR FREE, THAT THE WEBSITE AND OUR SERVERS ARE SECURE, OR AS TO THE ACCURACY, RELIABILITY, QUALITY OR CONTENT OF ANY INFORMATION, SERVICE OR PRODUCT PROVIDED ON OR THROUGH THE WEBSITE, AS WELL AS ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE; PROVIDED THAT THIS SECTION SHALL NOT OPERATE TO EXCLUDE OR DISCLAIM THOSE WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THESE TERMS OF USE. USE OF THE WEBSITE IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF ANY INFORMATION, CONTENT OR SERVICES ACCESSED THROUGH OR OBTAINED BY MEANS OF THE WEBSITE. (b) Limitation of Liability. BESMARTEE SHALL NOT BE LIABLE TO YOU FOR PERSONAL INJURY, OR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OR INTERRUPTION OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL OR LOST PROFITS), UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OF USE, EVEN IF BESMARTEE HAS BEEN ADVISED OF THE RISK OF SUCH DAMAGES. Because some states or jurisdictions do not allow certain exclusions or limitations of liability, in such states or jurisdictions the above limitations and exclusions may not apply to you. In such states or jurisdictions, BeSmartee’s liability is limited to the extent permitted by law, thereby minimizing BeSmartee’s liability to you to the lowest amount permitted by applicable law. (c) Indemnification. You agree to defend, indemnify and hold BeSmartee harmless from and against any liability, loss, damages or costs, including reasonable attorneys’ fees, resulting from any third party claim, action, or demand based on or arising out of: (i) your use of or access to the Website or products or services hosted thereon; (ii) your violation of any third party proprietary or other rights; (iii) your breach of these Terms of Use; or (iv) your use of software robots, spiders, crawlers, or similar data gathering and extraction tools, or any other action you take that imposes an unreasonable burden or load on BeSmartee’s infrastructure. You shall not settle any such claim, action or demand unless such settlement completely and forever releases BeSmartee from all liability with respect to such claim or unless BeSmartee consents to such settlement in writing (which consent shall not be unreasonably withheld).
GOVERNING LAW; DISPUTE RESOLUTION
(a) Dispute Resolution. You and BeSmartee agree that we will first attempt to resolve any legal or equitable claim relating to these Terms of Use (referred to as “Claim”) informally. Accordingly, neither of us may start a formal proceeding (except for Claims involving any violation of the federal trademark or copyright laws, or for injunctive relief) for at least thirty (30) days after one of us notifies the other of a Claim in writing. BeSmartee will use commercially reasonable efforts to send its written notice by first class mail, return receipt requested, or national overnight courier to your billing address, if available, with a copy via email to your email address. If BeSmartee does not have a contact method for you or cannot obtain one with reasonable commercial efforts, you acknowledge and agree that BeSmartee may pursue Claims against you as a “John Doe” defendant and employ legal processes to obtain your identity. You will send your written notice by first class mail, return receipt requested, or national overnight courier to BeSmartee, Inc., 5252 Argosy Avenue, 2nd Floor, Huntington Beach, CA 92649. If we cannot resolve a Claim informally, you and BeSmartee each agree to submit to personal jurisdiction in Huntington Beach, California and agree that any and all Claims either of us asserts shall be exclusively brought in the appropriate state or federal court in Huntington Beach, California, provided that neither you nor BeSmartee shall be precluded from filing a Claim in small claims court for disputes within the small claims court jurisdictional level. (b) Governing Law and Attorney’s Fees. This Agreement is governed in all respects by the substantive laws of the State of California, without regard to its conflict of law rules, and of the United States of America. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. The Website is intended for and directed to residents of the United States and all information, advertising and claims contained on the Website are valid in and applicable only to the United States. If any action at law or in equity is necessary to enforce these Terms, the prevailing party shall be entitled to reimbursement from the other party for its expenses and reasonable attorneys’ fees associated with the action, in addition to any other relief to which such prevailing party may be entitled.
VII. MISCELLANEOUS
(a) Suggestions and Feedback. BeSmartee welcomes feedback or inquiries about our products. If you elect to provide any feedback or comments of any nature to BeSmartee, all of such feedback and comments shall be the sole and exclusive property of BeSmartee, and BeSmartee shall have the right to use such feedback in any manner and for any purpose in BeSmartee’s discretion without remuneration, compensation or attribution to you, provided that BeSmartee is under no obligation to use such feedback. (b) Interpretation, Assignment and Entire Agreement. These Terms of Use, together with our Privacy Policy, form the complete and exclusive agreement between you and BeSmartee relating to the Website (excluding any use of the BeSmartee Services, which are governed by a Master Agreement), and they supersede all prior or contemporaneous proposals, oral or written, understandings, representations, conditions, warranties and all other communications between you and BeSmartee. These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by BeSmartee without restriction. Subject to the BeSmartee’s modification rights set above, no amendment of any provision of these Terms of Use shall be effective unless set forth in a writing signed by you and a representative of BeSmartee, and then only to the extent specifically set forth therein. These Terms of Use may not be explained or supplemented by any prior course of dealings or trade by custom or usage. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of these Terms of Use shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions. (c) Contact Us. If you have any questions, comments or concerns regarding these Terms of Use and/or the Website, please send an email to: privacy@besmartee.com. Please note that communications made through e-mail or the Website’s messaging systems shall not be deemed to constitute legal notice to BeSmartee or any of its officers, employees, agents or representatives. You may provide legal notice to BeSmartee in writing by first class mail, return receipt requested, or national overnight courier, at: Attn: Legal Department BeSmartee Inc. 5252 Argosy Avenue, 2nd Floor, Huntington Beach, CA 92649