Smarterer, Inc. API Terms and Conditions
These terms and conditions apply exclusively to your access to, and use of, the products and services, including data, text, software, documents, and other material (the “Services”) associated with the application programming interface (the “API”) offered by Smarterer, Inc. ("we," "us," "our," and "Smarterer") on the Smarterer website (the “website”). They do not alter in any way the terms or conditions, agreements or otherwise you may have with Smarterer for any other products or services. If you would like to register with Smarterer as an individual consumer user separately and not in connection with the API, please go to the Smarterer consumer website at www.smarterer.com to access and agree to the Consumer-Level User Agreement. By registering as a developer, you or the entity or company that you represent are unconditionally agreeing to be bound by these Terms and Conditions (the “Terms”). Your continued use of the API shall also constitute assent to the Terms. You should visit this page periodically to review the Terms, because they are binding on you. The terms "You" and "Developer" as used herein refer to all individuals and/or entities that use the Services.
- A. Purpose. The purpose of the Services is to provide Developers with an API to create and run websites and applications (the “Applications”) that meet the terms and conditions set forth in the Terms.
2. DEVELOPER OBLIGATIONS.
- A. Applicable laws and this Agreement. You must comply with all applicable laws, the Agreement, as may be amended from time to time with or without advance notice, and with the policies and processes explained in the Agreement (including any other documents referenced herein). You understand and agree that use of the Services is at your own risk and you are responsible for ensuring that any tests you use for hiring and selection purposes are EEOC compliant.
- C. Payment. Please contact us for details about the fee. Smarterer may change the fees and charges then in effect, or add new fees or charges, by giving you notice in advance. Unless otherwise stated, our fee is exclusive of any expenses or value added, sales tax or other taxes that will be charged (and payable by you) at the applicable rate at the time of invoice. You agree to pay the applicable fees for the API and Services (including, without limitation, periodic fees) as they become due plus all related taxes, and to reimburse us for all collection costs and interest for any overdue amounts. All fees and charges are nonrefundable and there are no refunds or credits for partially used services or periods.
- D. Use of API. Subject to your compliance with these Terms, we hereby grant to you a limited, personal, non-exclusive, non-transferrable, non- sublicenseable, revocable license to access and use the API solely as necessary to create and run the Applications. As a condition to such use, you must cause your individual users (each, an “App User”) to sign up for a Smarterer User account before taking any tests and, as a condition thereto, to agree to the Smarterer User Agreement (for Consumer Users) [http://smarterer.com/legal/terms]. The Developer further understands and agrees that when an App User takes a Smarterer test, such App User becomes the owner of his or her own account and user-generated content, and may use it in accordance with the Smarterer User Agreement [http://smarterer.com/legal/terms]. You agree that you shall not distribute or allow access to the stand-alone APIs, or provide an application program interface that provides access to User Data (as defined below). Anyone who wants access to our APIs and User Data must join our developer program.
E. Use of App User Data. App User contact information, certain profile information and scores (collectively “User Data”) may be visible to you, the Developer, through the API. You agree that such User Data shall be used solely for employee or contractor hiring for you or, in the event that you provide recruiting services, for the specific position for which you were engaged by your clients. In particular, you shall not use the User Data for the following purposes:
- i. In any advertisements or for purposes of targeting advertisements, in your Application or elsewhere.
- ii. For generating messages, promotions, offers, or mass messages or for any other purpose other than hiring a potential employee or consultant.
- iii. Sell, lend lease, share, distribute, transfer, or sublicense any User Data, which shall include the grant of access to any User Data, directly or indirectly, to any third party, including any recruiters, data brokers, salespersons, or advertising-related entities.
- F. Developer Information. Any information you submit to us, including information you submit on behalf of your App Users, is at your own risk of loss as noted in this Agreement. By providing information to us, you represent and warrant that you originally created, own or are otherwise explicitly entitled to submit the information and that the information is accurate, not confidential, and not in violation of any contractual restrictions or other third party rights. You agree to: (1) keep any passwords secure and confidential; (2) not permit others to use your account; (3) refrain from using any Users' accounts; and (4) refrain from selling, trading, or otherwise transferring your Smarterer account to another party. Further, you are responsible for anything that happens through your account until you close down your account or prove that your account security was compromised due to no fault of your own. You agree to immediately notify Smarterer of any unauthorized use of your account. To close your account, please visit Smarterer's customer service site.
- G. Indemnification. You shall indemnify us and hold us harmless for all damages, losses and costs (including, but not limited to, reasonable attorneys' fees and costs) related to all third party claims, charges, and investigations, caused by (1) your failure to comply with this Agreement, including, without limitation, your submission of content that violates third party rights or applicable laws, (2) any content you submit to the Services, (3) any activity in which you engage on or through Smarterer, and (4) your failure to ensure that any tests you administer to employees or employee candidates are compliant with current Department of Labor, Equal Employment Opportunity Commission, and state and local labor and employment standards and laws.
- H. Notifications and Service Messages. For purposes of service messages and notices about the API or Services to you, notice shall consist of an email from Smarterer to an email address associated with your account, even if we have other contact information. You also agree that Smarterer may communicate with you through your Smarterer account or through other means including email, mobile number, telephone, or delivery services including the US Postal Service about your Smarterer account or services associated with Smarterer. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the API or Services.
- I. Export Control. Your use of Smarterer services, including our software, is subject to export and re-export control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the United States Department of Commerce and sanctions programs maintained by the Treasury Department's Office of Foreign Assets Control. You shall not – directly or indirectly – sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end-user without obtaining the required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving US origin products, including services or software.
3. INTELLECTUAL PROPERTY.
- A. Ownership of Intellectual Property. You shall at all times remain the owner of any data or materials (including Intellectual Property related thereto) that you provide to us. We, or our licensors (including users), as applicable, shall at all times remain the sole owner of any Intellectual Property related to the website, the API or the delivery of the Services, including any test questions, the User Data (as defined below) as well as any Intellectual Property created by us or on our behalf in the course of performing the Services. For the purposes of this Agreement, “Intellectual Property” means any patent, copyright, design right, registered design, trade mark, service mark, trade name, domain name, algorithms, user interface designs, benchmark data, architecture, know-how, database right, utility model, unregistered design or other industrial or intellectual property rights subsisting throughout the world, whether or not registered and all applications, renewals and extensions of the same.
- C. Attribution and Test Flow. You must display attribution to Smarterer on your Application if Smarterer API content or data are served from your Application. Accordingly, you agree to display the Smarterer brand and logo prominently on the Application or equivalent media. You further agree that you will not alter the Smarterer-designed test flow and style without first obtaining written consent from us.
4. SMARTERER RIGHTS AND OBLIGATIONS.
- A. Services Availability. For as long as Smarterer continues to offer the API, Smarterer shall provide and seek to update, improve and expand the API and Services. As a result, we allow you to access Smarterer as it may exist and be available on any given day and have no other obligations, except as expressly stated in this Agreement. We may modify, replace, refuse access to, suspend or discontinue Smarterer or its API, partially or entirely, or change and modify prices for all or part of the Services in our sole discretion. All of these changes shall be effective upon their posting on our site or by direct communication to you unless otherwise noted. Smarterer further reserves the right to withhold, remove and or discard any content available as part of your account, with or without notice if deemed by Smarterer to be contrary to this Agreement.
- C. Disclosure of Developer Information. You acknowledge, consent and agree that we may access, preserve, and disclose your registration and any other information you provide for internal business and marketing purposes, and as needed to provide the Services hereunder. We may also provide such information if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary in our opinion to: (1) comply with legal process, including but not limited to civil and criminal subpoenas, court orders or other compulsory disclosures; (2) enforce this Agreement; (3) respond to claims of a violation of the rights of third parties, whether or not the third party is a User, individual, or government agency; (4) respond to customer service inquiries; or (5) protect the rights, property, or personal safety of Smarterer, our Developers, customers and Users, or the public.
- D. Connections and Interactions. Smarterer reserves the right, but has no obligation, to monitor disputes between you and Users, Developers or other members and to restrict, suspend, or close your account if Smarterer determines, in our sole discretion, that doing so is necessary to enforce this Agreement.
- A. SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. WE PROVIDE THE SMARTERER PLATFORM AND API AND ALL INFORMATION AND SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WITHOUT WARRANTY AS TO ANY INFORMATION THEREIN OR TO ITS CONTINUATION. WE DO NOT PROVIDE ANY EXPRESS WARRANTIES OR REPRESENT A TIONS. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. IF YOU ARE DISSATISFIED OR HARMED BY SMARTERER OR ANYTHING RELATED TO SMARTERER, YOU MAY CLOSE YOUR SMARTERER ACCOUNT AND TERMINATE THIS AGREEMENT IN ￼￼ ACCORDANCE WITH THIS AGREEMENT AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY.
- B. SMARTERER IS NOT RESPONSIBLE, AND MAKES NO REPRESENTATIONS OR WARRANTIES FOR, THE COMPLETENESS, ACCURACY, FAIRNESS, LACK OF BIAS, RELIABILITY OR VALIDITY OF OUR API OR THE CROWDSOURCED SKILLS TESTS WE PROVIDE, WHICH MA Y AMONG OTHER THINGS CONT AIN ERRORS, OMISSIONS, BE INACCURATE, OR INCOMPLETE. IN ADDITION, WE NEITHER WARRANT NOR REPRESENT THAT YOUR USE OF THE SERVICE WILL NOT INFRINGE THE RIGHTS OF THIRD PARTIES. ANY MATERIAL, SERVICE, OR TECHNOLOGY DESCRIBED OR USED ON THE WEBSITE MAY BE SUBJECT TO INTELLECTUAL PROPERTY RIGHTS OWNED BY THIRD PARTIES WHO HAVE LICENSED SUCH MATERIAL, SERVICE, OR TECHNOLOGY TO US. SMARTERER DOES NOT HAVE ANY OBLIGATION TO VERIFY THE IDENTITY OF THE PERSONS SUBSCRIBING TO ITS SERVICES, NOR DOES IT HAVE ANY OBLIGATION TO MONITOR THE USE OF ITS SERVICES BY OTHER USERS OF THE COMMUNITY; THEREFORE, SMARTERER DISCLAIMS ALL LIABILITY FOR IDENTITY THEFT OR ANY OTHER MISUSE OF YOUR IDENTITY OR INFORMATION.
- C. SMARTERER DOES NOT GUARANTEE THAT THE SERVICES IT PROVIDES WILL FUNCTION WITHOUT INTERRUPTION OR ERRORS IN FUNCTIONING. IN PARTICULAR, THE OPERATION OF THE SERVICES MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. SMARTERER DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, SMARTERER DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SMARTERER SITE OR API DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.
6. LIMITATION OF LIABILITY.
SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU. Neither Smarterer nor any of our subsidiaries, affiliated companies, agents, employees, shareholders, or directors ("Smarterer Affiliates") shall be liable for (a) any damages in excess of 120% of the fee paid or is payable by you for the API or Services, if any, or US $100, whichever amount is greater, or (b) any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data to you or any third person arising from your use of the API or Service, any platform applications or any of the content or other materials on, accessed through or downloaded from Smarterer. This limitation of liability shall apply regardless of whether (1) you base your claim on contract, tort, statute or any other legal theory, (2) we knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose. This limitation of liability shall not apply to any damage that Smarterer may cause you intentionally or knowingly in violation of this Agreement or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed from in this Agreement.
- A. Mutual Rights of Termination. You may terminate this Agreement, for any or no reason, at any time, by ceasing to use the Smarterer API and Services, removing implementation of the Smarterer API from your website or Application, and deleting any copies of the Smarterer brand or logo or links to Smarterer Services. Smarterer may terminate the Agreement for any reason or no reason, at any time, with or without notice. This cancellation shall be effective immediately or as may be specified in the notice. The terms of this Agreement, including but not limited to the terms set forth in Section 2 shall expressly survive any termination, except Sections 3.
8. MASSACHUSETTS LAW AND ARBITRATION.
- A. Choice of Law. Except for any Disputes relating to intellectual property rights, obligations or any infringement claims, any disputes with Smarterer arising out of or relating to the Agreement ("Disputes") shall be governed by Massachusetts law regardless of your country of origin or where you access Smarterer, and notwithstanding of any conflicts of law principles and the United Nations Convention for the International Sale of Goods.
- B. Agreement to Arbitrate and Pay Attorneys' Fees. Any Disputes shall be resolved by final and binding arbitration under the rules and auspices of the American Arbitration Association, to be held in Boston, Massachusetts, in English, with a written decision stating and legal reasoning issued by the arbitrator(s) at either party's request, and with arbitration costs and reasonable documented attorneys' costs of both parties to be borne by the party that ultimately loses.
- C. Exception from Arbitration Agreement. Either party may obtain injunctive relief (preliminary or permanent) and orders to compel arbitration or enforce arbitral awards in any court of competent jurisdiction.
9. GENERAL TERMS.￼￼￼￼
- A. Severability. If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision; and if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected in any way.
- C. Notices and Service of Process. In addition to Section 2.H. ("Notices and Service Messages"), we may notify you via postings on www.Smarterer.com. You may contact us via email at: email@example.com or via mail or courier at: Smarterer, Inc., ATTN: President, 500 Harrison Avenue, Suite 3R Boston, MA 02118. Additionally, Smarterer accepts service of process at this address. Any notices that you provide without compliance with this section on Notices shall have no legal effect.
- D. Entire Agreement. You agree that this Agreement constitutes the entire, complete and exclusive agreement between you and us regarding the Services and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other Smarterer services, third-party content or third party software.
- E. Amendments to this Agreement. We reserve the right to modify, supplement or replace the terms of the Agreement, effective upon posting at www.Smarterer.com or notifying you otherwise. If you do not want to agree to changes to the Agreement, you can terminate the Agreement at any time.
- F. No informal waivers, agreements or representations. Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by the Agreement, no representations, statements, consents, waivers or other ￼￼￼￼￼￼ acts or omissions by any Smarterer Affiliate shall be deemed legally binding on any Smarterer Affiliate, unless documented in a physical writing hand signed by a duly appointed officer of Smarterer.
- G. No Injunctive Relief. In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Services or any content or other material used or displayed through the Services.
- H. Beneficiaries. Entities other than Smarterer, Inc., that Smarterer Inc. owns a 50% or greater interest in are not parties, but intended third party beneficiaries of this Agreement, with a right to enforce the Agreement directly against you.
- I. Assignment and Delegation. You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you. We may also substitute, by way of unilateral novation, effective upon notice to you, Smarterer, Inc. for any third party that assumes our rights and obligations under this Agreement.