SmartPass is a software solution by SmartPass, Inc., a Delaware Corporation, (“SmartPass”, “we,” “our,” “us,” or “Licensor”. SmartPass is a platform designed to manage student hall passes, student identification cards and related services (the “Services”). Our website, located at www.smartpass.app and the Services provided through the website or our application (collectively the “Site”) is provided to the user or the person using our Services or accessing our Site. The following terms and conditions, including those documents incorporated herein by reference (collectively, the “Terms”) are a legal agreement between SmartPass on the one hand, and you and your employer (collectively, “Client”) on the other. By approving a Quote, having access to, receiving, and/or using the Services provided by SmartPass you agree, on behalf of Client, without limitation or qualification, to be bound by and to comply with these Terms. Client may not use the Hosted Service unless it accepts these Terms and has the power and legal right to form a contract with SmartPass under these Terms. Any individual using, accessing or procuring Services in the name of or as part of such individual’s responsibilities within an organization, or who submits to the Hosted Service data controlled by such organization, represents and warrants that such individual is authorized and intends by those actions to bind such organization to these Terms.
Each Quote will be deemed to incorporate these Terms as published by SmartPass on the effective date of such Quote.
“Agreement” means these Terms and each Quote agreed by the parties.
“Client Data” means any electronic data, information or material, including content created by Users and personal information, provided or submitted to SmartPass by Client or Users to or through the Hosted Service.
“Hosted Service” means, collectively, those hosted service(s) set forth in an Quote(s) made available by SmartPass, using (and including) SmartPass’s cloud platform, proprietary software and associated documentation.
“Quote” means the an online or written Quote or account setup form for the Service or another written agreement, submitted by Client and accepted by SmartPass from time to time, specifying, among other things, the number of licenses, services, fees, the Service Term and other charges as agreed to between the parties, but which does not contain any modifications of or amendments to these Terms unless expressly agreed by the Client and SmartPass.
“Service Term” means the term during which SmartPass will provide the Services to Client as specified in each Quote. Each Service Term commences upon the later of the execution of the Quote for such Service Term or the designated Service Term start date on such Quote.
“Users” means Client’s employees and contractors who are authorized to use the Hosted Service or students authorized by a Staff User to use the Hosted Service as a student.
A. Hosted Service. Subject to these Terms, SmartPass grants Client and its Staff Users a non-exclusive, non-transferable, non-sublicensable right during the Service Term to access and use the Hosted Service, and SmartPass will make the Hosted Service available to for its intended pedagogical purpose in accordance with these Terms and the Quote(s). Client's use of the Hosted Service is subject to the limitation on the number of Users specified in the relevant Quote and payment of the fee specified in the relevant Quote if Client exceeds the User limit. SmartPass may in its sole discretion change the Hosted Service without materially decreasing the functionality of the Hosted Service. Other than as expressly set forth in these Terms, no license or other rights are granted in the Services, SmartPass expressly reserves all such rights and all title and interest in and to the Services and all intellectual property rights therein.
B. Access. SmartPass will provide Client’s Users access to the Hosted Service pursuant to password protected user accounts. SmartPass will send instructions to Users, including Client-designated administrator Users (each an “Admin”) regarding the administrative tools made available to Client, and will provide Admins with
appropriate administrative credentials. The Admin tools and other User tools allow a variety of actions, including, for example, the creation of additional Admins, approving or rejecting individuals as Users, viewing and allowing the viewing of the information of other users, and editing or deleting from the Hosted Service information (including Client Data) submitted by other Users. All actions taken using the Admin and User tools will be deemed approved by Client.
C. Restrictions. Client shall not itself or cause or permit others to: (a) disassemble, reverse engineer, or decompile the Hosted Service or otherwise attempt to access any of technology underlying the Hosted Service; (b) access the administrative interfaces of the Hosted Service for the purposes of competitive analysis, benchmarking, or designing, modifying, or otherwise creating any service or software program, or any portion thereof, that performs functions similar to the functions performed by the Hosted Service; or (c) copy, sublicense, or provide access or other dissemination of any element of the Hosted Service, in whole or in part, to any third party.
D. Support. SmartPass will provide reasonable email support for the Hosted Service during normal business hours (between the hours of 7:00 am and 7:00 pm EST on business days).
A. Client Data. As between SmartPass and Client, all Client Data remains the sole property of Client. Client grants to SmartPass a non-exclusive license during the Service Term to use and reproduce the Client Data to the extent necessary to provide, maintain, and improve the Services. SmartPass will also have the right during and after the Service Term to (a) use and analyze data about the use of the Hosted Service by Client and Users in order to maintain and improve the Services, and (b) to disclose statistics aggregating Client and User usage data with SmartPass’s other clients’ data for marketing and other purposes; provided that such data and statistics are not used except as de-identified or aggregated in a manner which renders identification of natural persons infeasible, and are never disclosed to any third party (except SmartPass subcontractors in connection with the provision of the Services) other than in an aggregated format from which neither the identity of Client nor the identity of any natural person can reasonably be derived.
B. Data Compliance.
D. Suggestions, Ideas and Feedback; Client Data. SmartPass shall have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Client or any other party relating to the Service.
A. Responsibility. Client shall: (a) have sole responsibility for all activities that occur under Client’s User accounts and for all Client Data; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Hosted Service and notify SmartPass promptly of any such activity; and (c) comply with all applicable local, state, federal, and foreign laws (including the Family Educational Rights and Privacy Act (20 U.S.C. 1232g) and the Family Educational Rights and Privacy Act Regulations (34 CFR Part 99), as amended or otherwise modified from time to time) in using the Hosted Service.
B. Hosted Service Guidelines. Client shall use the Hosted Service solely for its internal purposes as contemplated by these Terms and shall not use, or allow Users to use, the Hosted Service in a manner inconsistent with such purpose, including without limitation: (a) attempting to gain unauthorized access to, interfere with or disrupt the integrity or performance of the Hosted Service, computer systems, or networks related to the Hosted Service or any data contained in any of those; or (b) harassing or interfering with any User’s use and enjoyment of
the Hosted Service.
A. Fees. Client shall pay the fees as specified in each Quote. Fees are non-refundable except as otherwise specifically set forth in these Terms. In the event of termination for convenience by SmartPass, Client will be entitled to a pro-rated refund. SmartPass reserves the right to charge fees for certain features. SmartPass will notify you when we intend to charge for a service or feature. You will always have the choice whether to use those features. If you continue to use any service or feature after you have been notified or any applicable fees, that use constitutes your acceptance of any new or increased fees.
B. Payment Terms. Amounts due shall be payable thirty (30) days from the invoice date. All quotes and payments made under these Terms shall be in United States dollars. Late payments shall bear interest at the lower of one and one-half percent (1.5%) per month or the maximum rate permitted by law. If Client’s account is ten (10) days or more overdue, in addition to any of its other rights or remedies, SmartPass reserves the right to suspend the Service provided to Client, without prior notice or liability to the Client, until such amounts are paid in full. Client shall pay all of SmartPass’s reasonable fees, costs and expenses (including reasonable attorney’s fees) if legal action is required to collect outstanding undisputed balances.
C. Taxes. SmartPass’s fees are exclusive of all taxes, levies, or duties of any nature (“Taxes”), and Client is responsible for payment of all Taxes, excluding only taxes levied by SmartPass’s local taxing authority on SmartPass’s income. If SmartPass has the legal obligation to pay or collect taxes for which Client is responsible pursuant to this Section 5.3, the appropriate amount shall be invoiced to and paid by Client, unless Client provides SmartPass with a valid tax exemption certificate authorized by the appropriate taxing authority.
A. Definition of Confidential Information. As used herein, “Confidential Information” means all information of a party (“Disclosing Party”) which the Disclosing Party designates in writing as being confidential when it discloses such information to the other party (“Receiving Party”), including without limitation these Terms, the Hosted Service and any nonpublic information regarding the same, business and marketing plans, technology and technical information, product designs, and business processes (whether in tangible or intangible form, in written or in machine readable form, or disclosed orally or visually). Confidential Information shall not include any information that: (a) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (b) was independently developed by the Receiving Party without the
Receiving Party’s breach of any obligation owed to the Disclosing Party; or (c) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party.
B. Protection. Neither party will disclose the other party’s Confidential Information, or use the other party’s Confidential Information for any purpose other than to perform its obligations or exercise its rights under these Terms. Each party will protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. Further, to the extent that Client is subject to a freedom of information act, open records law or similar legislative or regulatory obligations (“Disclosure Laws”), Client agrees that it will treat SmartPass’s Confidential Information as subject to exemption from disclosure as “confidential commercial information” or any similar category of information subject to exemption from disclosure to the maximum extent possible under the relevant Disclosure Laws.
C. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior written notice of such compelled disclosure and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to contest the disclosure. Without limiting the generality of the foregoing, Client agrees that it will provide SmartPass with the maximum notice period and right to object to disclosure of SmartPass Confidential Information available under the applicable Disclosure Laws.
D. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
A. Warranties. Each party represents and warrants that it has the legal power to enter into these Terms, and that it has the right and authority to grant to rights granted under this Agreement.
B. Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SMARTPASS MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
A. Limitation of Liability.
B. Limitation of Action. No action (regardless of form) arising out of the Agreement may be commenced by either party more than two (2) years after the expiration of the Service Term for the Service(s) to which such action pertains.
B. Termination for Cause. A party may terminate the Agreement for cause: (a) upon thirty (30) days written notice of a material breach to the other party, provided such breach remains uncured at the expiration of the notice period; or (b) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
C. Effect of Termination. Upon the effective date of termination of this Agreement: (a) all then-active Quotes will terminate; (b) Client’s use of the Services is terminated, and Client shall immediately cease accessing the Hosted Service except that for thirty (30) days after termination, Client may access the Hosted Service solely to downloading its Client Data; and (c) any and all payment obligations of Client incurred prior to the date of termination will immediately become due. The following provisions shall survive the termination or expiration of these Terms for any reason and shall remain in effect after any such termination or expiration: Sections 1, 2.3, 3, 5 (as to outstanding payment obligations) and 6 through 10.
A. Governing Law; Disputes. This Agreement and all disputes relating hereto shall be governed exclusively by, and construed exclusively in accordance with, the laws of the State of Pennsylvania, without regard to its conflict of laws provisions. The federal and state courts located in the Eastern District of Pennsylvania shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement, and each party hereby submits to the personal jurisdiction and venue of such courts. The parties acknowledge and agree that any unauthorized disclosure or use of a party’s confidential information or intellectual property would cause such party irreparable harm for which monetary damages would be inadequate. Accordingly, in the event of such a disclosure or use, the aggrieved party may seek injunctive or other equitable relief to enforce this Agreement in addition to any available legal remedies. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
B. Relationship of the Parties. This Agreement may not be construed to create or imply any partnership, agency or joint venture between the parties. SmartPass may utilize subcontractors to fulfill any of its obligations or exercise any of its rights hereunder, provided that SmartPass will remain responsible for such subcontractors’ actions and omissions in connection with the Agreement as if SmartPass had itself acted or failed to act. There are no third-party beneficiaries to this Agreement.
C. Force Majeure. Except for a failure to make payments when due, party is not liable under any Agreement for non-performance caused by events or conditions beyond that party's reasonable control, if the party makes reasonable efforts to perform.
D. Notices. To the extent notices can be delivered by the use of a designated feature of the user interface of the Hosted Service (e.g., Client termination notices or address changes), notice will be effective when delivered through such user interfaces. All other notices under this Agreement shall be in writing and sent by email, or personally delivered or sent by guaranteed overnight courier, by registered or certified mail, return receipt requested to SmartPass’s address for notice set forth on the Quote and to Client at the address provided by Client in its Hosted Service account, means evidenced by a delivery receipt or by email. Notice shall be deemed to have been given upon actual delivery (evidenced as to email by a non-automated reply) or refusal of delivery.
E. Waiver and Severability. Any express waiver or failure to exercise promptly any right under this Agreement will not create a continuing waiver or any expectation of non-enforcement. If any provision of this Agreement is held to be contrary to law or unenforceable, the provision shall be changed and interpreted so as accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate this Agreement.
F. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party, not to be unreasonably withheld. Notwithstanding the foregoing, SmartPass may assign this Agreement without Client or User’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any purported assignment in breach of this Section shall be void and of no effect. This Agreement shall bind and inure to the benefit of the parties’ respective permitted successors and permitted assigns.
G. Counterparts. Quotes may be executed in counterparts (including by exchange of PDF or similar documents), which taken together shall form one legal instrument.
H. Entire Agreement and Construction. These Terms and the Quote constitute the entire agreement between the parties as to its subject matter. No modification or waiver of these Terms shall be effective unless in writing and signed by the party against whom the modification or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Client order documentation (even if used as a Quote) shall be incorporated into or form any part of these Terms.
Updated June 8, 2023