PLEASE READ THESE TERMS OF SERVICE ("AGREEMENT" OR "TERMS OF SERVICE") CAREFULLY BEFORE USING THE PLATFORM AND SERVICES OFFERED BY SCISMIC INC. THIS AGREEMENT SETS FORTH LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE WEBSITE A https://smartboard.scismic.com ITS ASSOCIATED SUB-PAGES, AND ALL APPLICATION PROGRAMMING INTERFACES, CONTENT, SERVICES AND PRODUCTS PROVIDED BY SCISMIC INC. OR OTHERWISE MADE AVAILABLE AT OR THROUGH THE WEBSITE (“Platform”).
The following terms and conditions govern all use of the Platform by the user ("user" "you" "your"). The Platform and the accompanying “SmartBoard” brand are owned and operated by Scismic Inc. ("SmartBoard" "we" "us" "our"). The Platform is offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, SmartBoard's Privacy Policy and procedures that may be published from time to time on the Platform by SmartBoard (collectively, the "Agreement").
Please read this Agreement carefully before accessing or using the Platform. By accessing or using any part of the Platform, you agree to become bound by the terms and conditions of this Agreement. If you do not agree to all the terms and conditions of this Agreement, then you may not access the Platform or use any services. If these terms and conditions are considered an offer by SmartBoard, acceptance is expressly limited to these terms.
This Agreement applies to all users of, and visitors to, the Platform, including without limitation users who are organizations (including corporations, LLCs, partnerships, sole proprietorships, non-profits, enterprises, or otherwise) that purchase SmartBoard’s services and establish a SmartBoard through the Platform (“SmartBoard Manager”), the individual(s) that the SmartBoard Manager selects to manage their SmartBoard (“Representatives”), and any third party that participates in the SmartBoard, which may include the Representatives, SmartBoard Manager employees, contractors, customers, students, brand ambassadors, third-parties, or otherwise (“SmartBoard Users”).
SmartBoard is an online platform that allows SmartBoard Managers to assist SmartBoard Users with accessing opportunities for job placement and career development by gathering, making available, sharing and posting available job listings, available professional positions, and career development resources, utilizing our online Platform tools, and providing the SmartBoard Manager and SmartBoard with related analytics and metrics.
Each user is solely responsible for any material, personally identifiable information, messages, text, graphics, audio files, and/or software or other content such user makes available (or that a SmartBoard Manager allows any third party to make available) by means of the Platform ("Content").
You agree that SmartBoard is a Platform only, that SmartBoard is not required to pre-screen or monitor, and is not liable for monitoring or controlling the Content that is contributed, uploaded, and/or shared by any SmartBoard Managers and/or SmartBoard Users on the Platform and therefore SmartBoard IS NOT responsible or liable for any Content including, but not limited to, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, and links posted by you or other users on SmartBoard. SmartBoard does not guarantee continuous, uninterrupted access to the Platform, and operation of the Platform may be interfered with by numerous factors outside SmartBoard’s control. Your use of the Platform is at your own risk. Furthermore, SmartBoard cannot guarantee the true identity, age, and/or location of any user. SmartBoard does not verify any users, job providers, or job seekers, position, credentials, resume, or other qualifications. SmartBoard has no control over the quality, safety, morality or legality of any Content on the Platform. Scismic cannot guarantee the true identity, age, nationality, professional experience, or background of a user.
Services Agreement. In the event that a SmartBoard Manager has entered into a Services Agreement or Order Form (“MSA”) with SmartBoard, which governs the services being provided to the SmartBoard Manager by SmartBoard through the Platform, such MSA shall supersede this Section I. Terms for SmartBoard Managers and Representatives. The MSA shall not supersede Section II. Terms for SmartBoard Users, and all users of the Platform shall continue to be bound by the terms thereof.
Your SmartBoard. SmartBoard Managers are responsible for maintaining the security of their account, SmartBoard, and all content posted to, shared, or transmitted through the Platform. The SmartBoard Manager is fully responsible for all activities that occur under or through their account, including, but not limited to, the actions of the Representatives(s) and SmartBoard Users(s). SmartBoard Managers must immediately notify SmartBoard of any unauthorized uses of their SmartBoard, account, or any other breaches of security related to their use of the SmartBoard services. SmartBoard will not be liable for any acts or omissions of any user, including any damages of any kind incurred as a result of such acts or omissions. Any Content you generate and all trademarks, service marks, graphics, and logos provided by you, shall remain your property.
Responsibility of SmartBoard Managers. If you operate a SmartBoard, the Representatives will be able to share content, including, but not limited to data, text, information, reviews, posts, usernames, graphics, images, photographs, profiles, audio, video, links, software, and/or video, via your SmartBoard and create, incentives, contests, or sweepstakes that are communicated via the SmartBoard (any such incentive, "Rewards"), or otherwise make (or allow any third party to make) material available by means of the Platform (any such material, "Content"). You are entirely responsible for the content of, legal requirements and/or costs associated with, and any harm resulting from, that Content and/or Rewards.
After the free trial period ("Trial"), if applicable, use of the Platform is contingent upon payment of fees. SmartBoard provides paid subscription services (the "Subscription") to you, for a fee (the “Fee(s)”), subject to the terms and conditions contained in this Agreement and the Privacy Policy. The paid for services are available to Smartboard End Users directly, as well as Smartboard Managers. If you elect to access any paid component of the Platform, you agree to pay all Fees associated with that paid component on a timely basis. You may purchase a Subscription access to the SmartBoard services on an annual or monthly basis, certain other or time limited services, for the durations specified on SmartBoard (the "Access Period"). Unless otherwise stated, all Fees are due and payable in advance, are non-refundable, and are exclusive of any applicable federal, state, telecommunications, excise, municipal taxes or duties, including VAT and GST, or other local taxes (“Applicable Taxes”). All such Fees will be charged to the payment method you provided when you elected to access that paid component of the Platform. You agree to maintain a valid, accurate, and up to date payment method during the term of your use of such Services. You further agree to keep your contact and account information current, including your address, telephone number, and email address. You can update your information in your Manager Dashboard on the Platform. You agree that you will not provide fraudulent information and that you are solely responsible for any information you provide to SmartBoard and accept responsibility for all activities that occur under your account or password. You will comply with all laws applicable to your activities on the Platform and with this Agreement.
Your ability to access and use your chosen Subscription commences on the date SmartBoard makes the services available to you following your registration for such Subscription and remittance of the Fee and Applicable Taxes, if any, and continues until the end of the applicable Access Period. SmartBoard will automatically renew or commence your Subscription for a new Access Period by charging the associated Fee plus any Applicable Taxes to the payment method you provided unless you cancel your Subscription as provided below.
Unless you affirmatively opt-out of automatic renewal at least thirty (30) days prior to the end of the then-current Access Period (as applicable), you hereby authorize SmartBoard to renew or commence your Subscription automatically at the end of each Access Period for a new Access Period. If you opt-out of automatic renewal, your Subscription will expire and your access to the SmartBoard services will cease at the end of your Subscription Access Period. In order to continue to access your account and the services after your Access Period has expired, you will need to purchase a new Subscription. SmartBoard assumes no responsibility or liability if your Subscription fails to renew or otherwise expires because of outdated or incorrect payment information. You are limited to the number of SmartBoard Users that may participate, per SmartBoard, based on your Subscription level. You may upgrade your Subscription level at any time an upgrade is available.
You may cancel your Subscription at any time by contacting your designated Scismic customer account representative via email. If you cancel your Subscription during your current Access Period, your access to the Subscription will continue until the end of your then-current Access Period, at which point it will expire. Purchase and/or redemption of your Subscription is final and non-refundable; SmartBoard will not issue you any refund, including partial, pro-rated, or otherwise unless required to do so by law.
SmartBoard reserves the right to modify, offer additional, or cease offering its services at any time in its sole discretion, including but not limited to changes in Fees, or modifying the features and functionality of the Platform and any Subscription level. If we cease offering your current Subscription level, your access to your Subscription will continue until the end of your then-current Access Period, when commercially feasible. We will provide you with thirty (30) days prior notice via email before changes in Subscriptions or Fees take effect. Any changes to the Subscription or Fees will be effective upon your next billing cycle and will not apply retroactively or to the remainder of your current Access Period.
Support. Subscriptions include access to email support. "Email support" means the ability to make requests for technical support assistance by email at any time (with reasonable efforts by SmartBoard to respond within one business day). All support will be provided in accordance with SmartBoard standard support practices, procedures, and policies.
Termination. SmartBoard may terminate your access to all or any part of the Platform at any time, with or without cause, with or without notice, effective immediately. Upon such termination, SmartBoard will terminate and not bill for any future subscription payments.
Your Account.
SmartBoard's services are available only to, and may only be used by, individuals who are 18 years and older who can form legally binding contracts under applicable law. By accessing the Platform, you represent and warrant that you are at least 18 years old. Individuals under the age of 18 must at all times use SmartBoard's services only in conjunction with and under the supervision of a parent or legal guardian who is at least 18 years of age. In such cases, the parent or legal guardian, as applicable is the user and is responsible for any and all activities and transactions that involve the applicable minor on the Platform.
In order to access the service, you must register for an account with SmartBoard. To complete your registration, you will provide your full legal name, email address and create a password. You are responsible for maintaining the confidentiality of your password and account. You are solely responsible for any authorized or unauthorized access to your account by any person and any Fees incurred from use of the service with your password. You are further responsible for any and all liability and/or damage resulting from your failure to maintain password confidentiality. It is important for you to protect against unauthorized access to your computer. Be sure to log off when you finish using a shared computer. You agree to immediately notify SmartBoard of any unauthorized use of your password or any breach of security. You also agree that SmartBoard cannot and will not be liable for any loss or damage arising from your failure to keep your password secure. You represent and warrant that all registration information you submit is accurate and truthful. SmartBoard may, in its sole discretion, refuse to offer access to or use of the Platform to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Platform is revoked in such jurisdictions. You must keep your account information up-to-date and accurate at all times, including a valid email address.
You may not transfer or sell your SmartBoard account and User ID to another party. If you are registering as a business entity (corporation, LLC, partnership, non-profit, enterprise, third-party business, or other similar structure), you represent, warrant, and personally guarantee that the entity is in good standing and that you have the authority to bind said entity to this Agreement.
SmartBoard's services are not available to cancelled, or temporarily or indefinitely suspended, SmartBoard users. SmartBoard reserves the right, in SmartBoard's sole discretion, to cancel unconfirmed, active or inactive accounts. SmartBoard reserves the right to refuse service to anyone, for any reason, at any time.
You will provide all equipment and services and be responsible for all internet, electricity, telephone and other charges necessary for you to access the Platform and/or make use of the services. You agree to comply with all laws applicable to your activities on the Platform and with the terms of this Agreement. You acknowledge that from time to time the Service or the Platform may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs; or (iii) causes beyond the control of SmartBoard or which are not reasonably foreseeable by SmartBoard.
Responsibility of Platform Users. SmartBoard is not agreeing to and is not responsible for reviewing or monitoring any Content and cannot therefore be responsible for the Content, its use or effects. By operating the Platform, SmartBoard does not represent or imply that it endorses the Content, or that it believes such Content to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Platform may contain third party content that is offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. The Platform may also contain third party material that violates labor laws, job solicitation regulations, the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. SmartBoard disclaims any responsibility for any harm resulting from your use of the Platform, or from any downloading or sharing by any user of any Content, unless such harm was caused by the willful wrongdoing of SmartBoard.
Platform Use and Limitations of Use. We are authorizing you to use the features of the Platform which correspond to your Subscription or participation as a SmartBoard Member, as applicable, in accordance with this Agreement.
As a condition of your use of the Platform, you warrant to us that you will not use the Platform for any purpose that is unlawful or prohibited by this Agreement. You may not use the Platform in any manner which could damage, disable, overburden, or impair the Platform or interfere with any other party's use and enjoyment of the Platform. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Platform.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party, SmartBoard or its content in any way; (ii) modify or make derivative works based upon SmartBoard or its content; (iii) "frame" or "mirror" any of its content in any other server or wireless or Internet-based device; or (iv) reverse engineer or access SmartBoard in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of SmartBoard, or (c) copy any ideas, features, functions or graphics of SmartBoard.
You agree not to access (or attempt to access) the Platform by any means other than through the Platform or other interface provided to you by us, unless you have been specifically allowed to do so in a separate agreement with us. You specifically agree not to access (or attempt to access) the Platform through any automated means (including use of scripts or web crawlers) and shall ensure that you comply with the instructions set out in any instructions and policies present on the Platform.
You hereby represent and warrant that you will not (i) upload, download, post, email or otherwise transmit any Content in a fraudulent manner/for the purposes of committing a fraud; (ii) upload, download, post, email or otherwise transmit any Content that is unlawful, harmful, threatening, trade libelous, abusive, vulgar, harassing, defamatory, obscene, pornographic, profane, indecent, inflammatory, libelous, tortious, hateful, racially, ethnically, socially, politically, legally, morally, religiously objectionable or otherwise objectionable, or invasive of another's rights including but not limited to rights of celebrity, privacy and intellectual property; (iii) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; (iv) upload, download, post, email or otherwise transmit any Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party (v) upload, download, post, email or otherwise transmit any Content that would constitute or encourage a criminal offense, illegal activity, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law; (vi) use the Service to harm minors in any way, including, but not limited to, uploading Content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct, or upload Content that may be seen as condoning or encouraging unsafe practices that would result in the physical, mental or moral harm of children; (vii) upload, download, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (viii) copy, modify or distribute rights or Content from the Platform, service or tools or SmartBoard’s copyrights and trademarks; (ix) harvest or otherwise collect information about users without their consent; (x) violate this Agreement, or any applicable law, statute, ordinance or regulation (including, but not limited to, those governing employment and labor laws, equal opportunity employment, export control, consumer protection, data privacy and protection, unfair competition, CAN-SPAM, anti-discrimination or false advertising).
You acknowledge that SmartBoard and its designees shall have the right (but not the obligation) in their sole discretion to reject or remove any Content that is available via the Platform. SmartBoard and its designees shall have the right to remove, without prior notice, any Content that violates the Agreement or is otherwise objectionable to SmartBoard. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
YOU REPRESENT AND WARRANT THAT YOU ARE THE OWNER OF THE CONTENT WHICH YOU MAKE AVAILABLE THROUGH SMARTBOARD AND THAT THE CONTENT DOES NOT INFRINGE ANY APPLICABLE LAWS OR UPON THE PROPERTY RIGHTS, INTELLECTUAL PROPERTY RIGHTS (COPYRIGHTS AND TRADEMARKS) OR OTHER RIGHTS OF OTHERS. YOU ALSO REPRESENT THAT THERE ARE NO OUTSTANDING DISPUTES IN CONNECTION WITH THE PROPERTY RIGHTS, INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS IN THE CONTENT OR ANY PARTS OF THE CONTENT. YOU HEREBY REPRESENT AND WARRANT TO US THAT THIS AGREEMENT CONSTITUTES YOUR LEGAL, VALID AND BINDING OBLIGATION, ENFORCEABLE AGAINST YOU IN ACCORDANCE WITH ITS TERMS; AND THAT THE ACKNOWLEDGEMENT OF AND PERFORMANCE BY YOU OF THIS AGREEMENT ARE WITHIN YOUR LEGAL CAPACITY AND POWER; HAVE BEEN DULY AUTHORIZED BY ALL REQUISITE ACTION ON YOUR PART; REQUIRE THE APPROVAL OR CONSENT OF NO OTHER PERSONS; AND NEITHER VIOLATE NOR CONSTITUTE A DEFAULT UNDER THE (I) PROVISION OF ANY LAW, RULE, REGULATION, ORDER, JUDGMENT OR DECREE TO WHICH YOU ARE SUBJECT OR WHICH IS BINDING UPON YOU, OR (II) THE TERMS OF ANY OTHER AGREEMENT, DOCUMENT OR INSTRUMENT APPLICABLE TO YOU OR BINDING UPON YOU.
YOU SHALL COMPLY WITH ALL APPLICABLE DOMESTIC AND INTERNATIONAL LAWS, STATUTES, ORDINANCES AND REGULATIONS REGARDING YOUR USE OF THE PLATFORM AND ANY SMARTBOARD SERVICE.
SmartBoard Managers may have functionality in their Subscription that permits them to create job postings, which they post on the SmartBoard, and which are thereby made available to SmartBoard Users. For clarity job postings are Content of the SmartBoard Manager. Any such job postings are the sole responsibility of the SmartBoard Manager. SmartBoard shall not be an employer or co-employer or responsible for any employment decisions made by the SmartBoard or in any way liable for any job postings, offers, employment or contractor relationships, or determinations against any employment or contractor relationships that may arise therefrom. The SmartBoard Manager understands and agrees that a job posting may not contain:
Further the SmartBoard Managers agree not to:
As SmartBoard asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by smartboard.scismic.com violates your copyright, you are encouraged to notify SmartBoard in accordance with SmartBoard's Digital Millennium Copyright Act ("DMCA") Policy (see below). SmartBoard will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material that are contained on the Platform. SmartBoard may terminate a visitor's access to and use of the Platform at SmartBoard's sole discretion if SmartBoard determines that the visitor or user is or may be infringing on the copyrights or other intellectual property rights of SmartBoard or others. In the case of such termination, SmartBoard will have no obligation to provide a refund of any amounts previously paid to SmartBoard.
DMCA/IP Notification Policy. To notify SmartBoard of infringing or unlawful content, please provide SmartBoard with the following information:
SmartBoard takes such notices very seriously. We will evaluate the provided notice and if appropriate, based on our sole discretion, remove the content or disable access to the content. Based on our judgment, we may notify the source of the content of your complaint and our actions in response to your complaint. We reserve the right in our sole discretion to restore such content if the source of such content provides evidence that the content should not have been removed. We encourage you to see the advice of an independent attorney before filing an intellectual property notice or responding to a notice filed by another user.
SmartBoard may be notified of claims of intellectual property infringement by contacting our designated copyright agent, providing the above requested information to:
Scismic Inc. Attn: Copyright Agent PO Box 391763, Cambridge, MA 02139, [email protected]
Intellectual Property. Except as specifically provided herein, this Agreement does not transfer, assign or license from SmartBoard to you any SmartBoard or third-party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with SmartBoard. Scismic, SmartBoard, the Scismic and/or SmartBoard logo, and all other trademarks, service marks, graphics and logos used in connection with SmartBoard or the Platform are trademarks or registered trademarks of Scismic or Scismic’s licensors. Other trademarks, service marks, graphics, and logos used in connection with the Platform may be the trademarks of other third parties. Your use of the Platform grants you no right or license to reproduce or otherwise use any SmartBoard or third-party trademarks.
You hereby grant to SmartBoard, a perpetual, royalty free, paid up, limited license to your name, logo, website, and Content for SmartBoard’s promotional purposes (e.g., in SmartBoard’s portfolio, on the Platform, in SmartBoard’s case studies, on SmartBoard’s social media accounts, or otherwise).
Changes. SmartBoard reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Platform following the posting of any changes to this Agreement constitutes acceptance of those changes. SmartBoard may also, in the future, offer new services and/or features through the Platform (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.
Termination. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Disclaimer of Warranties. The Platform is provided "as is". To the extent allowed by law, SmartBoard and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose, and non-infringement. Neither SmartBoard nor its suppliers and licensors, makes any warranty that the Platform will be error-free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, the Platform at your own discretion and risk.
Limitation of Liability. In no event will SmartBoard, or its suppliers or licensors, be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental, or consequential damages; (ii) the cost of procurement or substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to SmartBoard under this agreement during the one (1) month period prior to the cause of action. SmartBoard shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
SmartBoard relies on third-party websites for its functioning, and the Platform may provide links, widgets, or references to websites operated by third parties. We do not monitor or investigate such websites and we are not responsible for the content, functionality, or practices of such websites. SmartBoard has no control over or responsibility for the maintenance or any outages of third-party websites or widgets. Inclusion of links to third-party websites on our Platform does not imply approval or endorsement of the linked website by us. If you decide to leave our Platform and access these third-party websites, you do so at your own risk. SmartBoard suggests that you read the Terms of Service and privacy policies (if any) on those third-party websites. You agree that SmartBoard has no liability for any damage or loss of any type that is a result of your use of a third-party website.
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF SMARTBOARD TO YOU. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. IF YOU ARE UNSURE ABOUT THIS OR ANY OTHER SECTION OF THESE TERMS, PLEASE CONSULT WITH A LEGAL PROFESSIONAL PRIOR TO ACCESSING OR USING THE PLATFORM. BY ACCESSING OR USING THE PLATFORM, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS, INCLUDING THIS SECTION. YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS.
General Representation and Warranty. You represent and warrant that (i) your use of the Platform will be in strict accordance with the SmartBoard Privacy Policy, with this Agreement, and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside) and (ii) your use of the Platform will not infringe or misappropriate the intellectual property rights of any third party.
Indemnification. You agree to indemnify and hold harmless SmartBoard, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys' fees, arising out of your use of the Platform, including but not limited to your violation of this Agreement.
Miscellaneous. This Agreement constitutes the entire agreement between SmartBoard and you concerning the subject matter hereof, and may only be modified by a written amendment signed by an authorized executive of SmartBoard, or by the posting by SmartBoard of a revised version. Except to the extent applicable law, if any, provides otherwise, this Agreement, any access to or use of the Platform will be governed by the laws of the state of Delaware, U.S.A., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Boston, Massachusetts. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. ("JAMS") by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Boston, Massachusetts, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys' fees. If any part of this Agreement is held invalid or unenforceable, that part will be construed to reflect the parties' original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under this Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; SmartBoard may assign its rights under this Agreement without condition. This Agreement will be binding upon and will inure to the benefit of the parties, their successors, and permitted assigns.