Please read these Terms of Service, the Privacy Policy available at https://help.smartsupp.com/en_US/privacy-policy/, the Data Processing Terms available at https://help.smartsupp.com/dpa, and all other documents referred to herein (collectively, the "Terms") carefully before you start using the Service. When you start using the Service or click to agree to these Terms of Service when this option is made available to you, you conclude an agreement on use of the Service with Smartsupp (the "Agreement") which includes the Terms.
1. Definitions
1.1. "Smartsupp" is the company Smartsupp.com, s.r.o., with registered office at Šumavská 524/31, Veveří, 602 00 Brno, ID number: 03668681, incorporated under the laws of the Czech Republic, registered at Regional court in Brno under file no. C 86206.
1.2. Pronouns "you" and "user" refer to you as a user of the Service. Users fall into one or more of the following categories:
a) "Free Users" who use the free version of the Service. Free Users have access to a limited set of Service features and functionality. Smartsupp reserves the right to limit features and availability of Free Users at any time without notice.
a) "Paying Users" use the Service based on a Subscription purchased by the user.
b) "Trial Users" use the Service during a trial period provided by Smartsupp. During the trial period, you may decide to stop using the Service without having to pay for the Subscription. If you continue to use the Service upon expiry of the trial period, then unless you choose a Subscription and enter payment details so that you are charged in accordance with the currently effective price list, you will be converted to Free User.
1.3. "Affiliate" of a person is any person that controls, is controlled by, or is under common control with, such person. The term "control" ("controlled by") means the power to direct or cause direction of management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.
1.4. "Chargeback" means contacting bank or credit / debit card provider and rejecting, cancelling, or contesting the charge of any amount payable in connection with use of the Service.
1.5. "Documentation" refers to all texts and materials available on the Website which describe the features of the Service, requirements for its use, integration, configuration, support, or maintenance. Documentation includes in particular, but not exclusively the knowledge base available at https://help.smartsupp.com/ and the developer docs available at https://docs.smartsupp.com/.
1.7. "Service" means the content and services provided through https://app.smartsupp.com and other distribution platforms of Smartsupp. Service features are described at https://www.smartsupp.com ("Website").
1.8. "Subscription" is any of the paid subscription plans as described on the Website. Individual Subscription plans may offer various functionality, customization options, integrations, and other features.
1.9. "Third-Party Materials" are materials, documents, data, products, services, or software that were not created by Smartsupp, including AI functionality and open-source software.
1.10. "Your Data" are data, instructions, materials, and other content that is provided by you, or that Smartsupp receives by or through the Service. Your Data does not include Resultant Data.
2. Service
2.1. Use. Subject and conditioned on your compliance with the Agreement, Smartsupp hereby grants you a non-exclusive, non-transferable right to use the Service during the term of the Agreement.
2.2. Reservation of Rights. Nothing in the Agreement grants any license or other right to any intellectual property rights in or relating to the Service, or Third-Party Materials. All rights to the Service and the Third-Party Materials are and will remain with Smartsupp and the respective rights holders. You do not acquire any rights except as expressly set forth in Section 2.1 or in the applicable third-party license terms. By entering into the Agreement or, as the case may be, by creation of such data, you assign to Smartsupp all rights relating to the Resultant Data. Smartsupp reserves the right to make changes to the Service that Smartsupp deems necessary or useful to comply with applicable law, enhance the quality of Service, cost efficiency or performance.
2.3. Suspension or Termination. Smartsupp may suspend, terminate, or otherwise deny your access to or use of the Service, if:
c) you do not pay the fees when due, or Smartsupp receives a Chargeback.
3. Use Restrictions
3.1. Use Restrictions. You may not, and may not permit any other person to, access or use the Service except as expressly permitted by the Agreement and, in case of Third-Party Materials, the applicable third-party license terms. You shall not in particular, but not exclusively:
a) make the Service available to anyone other than as permitted by your Subscription,
c) reverse engineer, copy, modify, adapt, or hack the Service,
d) access the Service, the Documentation, or Smartsupp confidential Information to build a competitive product or service; or
g) damage, disable, interfere with, or otherwise harm the Service, or Smartsupp’s provision of Service, or
h) access or use the Service in manner or for purpose that infringes any intellectual property right or other right of any third party or that violates any applicable law.
3.2. Sanctions. Service is offered to users who are not a target of any sanction’s regime, and do not reside in, nor will access the Service from a country from which such access is prohibited under any applicable sanction’s regime or export control laws. By using the Service, you represent that you meet the foregoing requirements. If you do not meet these requirements, you must not access or use the Service. In this context, Smartsupp reserves the right to limit the availability of the Service to any person, entity, geographic area, or jurisdiction at any time.
4. USER Obligations
4.2. User Responsibility. You are solely responsible for:
a) meeting the requirements set out in the Documentation, in particular but not exclusively for implementing the Chat Box, installing the Mobile SDK, and following all other steps described on the Website that are necessary to get started with the Service. If you do not meet the requirements or follow the steps, the Service may not function properly,
b) legality of processing of Your Data. In particular, you are responsible for ensuring that you are entitled to provide Smartsupp with all Your Data and that Smartsupp’s use and processing of Your Data for the purpose of providing the Service does not infringe any third-party rights, in particular intellectual property rights or privacy rights or obligations under any law or regulation. You are required to inform persons whose personal and other data you transfer to Us of such transfer, and to obtain consent to such transfer of personal data where necessary,
d) all access to and use of the Service through your systems or the access details, including all results obtained from such access or use and all conclusions, decisions and actions based thereon.
5. Fees and Payment
5.2. Fees. You shall pay Smartsupp the fees in accordance with the currently effective price list available on the Website immediately after the order has been submitted. Smartsupp may change the price list, institute new fees, or increase the fees for next renewal term by providing written notice (e.g. by email) to you prior to the commencement of such term. The obligation to pay the fees is not tied to your actual use of the Service. In the event that you do not use the Service or exhaust any measured aspect of your current Subscription plan size, this shall not affect Smartsupp's right to payment of the fees in full. Unless expressly set forth herein, the fees are non-cancelable and non-refundable.
5.4. Payment. You hereby agree to the terms and conditions of Stripe services available at https://stripe.com and Braintree services available at https://www.braintreepayments.com. Alternatively, you can use other payment options made available by Smartsupp, such as PayPal or payment by wire transfer based on an invoice. Payment instructions will be displayed to you immediately after the order is submitted. Smartsupp will issue and send the invoice to you after the order confirmation. In case of Subscription term renewal and payment for excessive use, the fees will be charged automatically to the payment method you last selected.
5.5. Late Payment. If you fail to make any payment when due, then Smartsupp may charge interest on the past due amount at the rate of 0.5% per each commenced day of delay or, if lower, the highest rate permitted under applicable law, and you shall reimburse Smartsupp for all costs incurred in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
5.6. Chargeback. Smartsupp reserves the right to immediately suspend access to the Service, without prior notice, in the event Smartsupp receives notice of Chargeback. Chargeback will be considered a breach of your payment obligations. Smartsupp may take reasonable steps to restrict your future access to our Service if Smartsupp believes that you have maliciously requested Chargeback.
6. Confidentiality
6.1. Confidential Information. In connection with the Agreement each party as a "Disclosing Party" may disclose or make available Confidential Information to the other one as a "Receiving Party". "Confidential Information" is any information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, or pricing.
6.2. Exclusions. Confidential Information does not include information that:
a) was known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement;
b) was or becomes generally known by the public other than by the Receiving Party’s or any of its representatives’ noncompliance with this Agreement;
c) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
6.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; and
b) except as may be permitted, not disclose or permit access to Confidential Information other than to its representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with the Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under Section 6; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth therein.
6.4. Compelled Disclosures. If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Confidential Information then, the Receiving Party may disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose. To the extent permitted by applicable law, the Receiving Party shall notify the Disclosing Party in writing in advance of such disclosure.
6.5. Term. Each Party's obligations under this Section 6 will last throughout the Agreement term and for five years thereafter; provided, however, with respect to any confidential information that constitutes a trade secret, such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such confidential information remains subject to trade secret protection under applicable law.
7. Representations and Warranties
7.2. Your Additional Warranties. You represent and warrant to Smartsupp that you own the necessary rights and consents relating to Your Data so that, as received by Smartsupp and processed in accordance with the Agreement, they do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, or any privacy or other rights of any third party or violate any applicable law.
7.3. Accuracy. As part of the Service, you and your customers may be provided with outputs generated by artificial intelligence. Despite Smartsupp and providers of Third-Party Materials contained in the Service are constantly working to improve the services, given the probabilistic nature of machine learning, use of these Services may in some situations result in output that does not accurately reflect real people, places, or facts. Therefore, when you use the Service, you understand and agree with the following disclaimers; and you shall also include these disclaimers to the terms of use for the website where the Service is implemented:
a) output may not always be accurate. You should not rely on output from the Service as a sole source of truth or factual information, or as a substitute for professional advice,
b) You must evaluate output for accuracy and appropriateness for your use case, including using human review as appropriate, before using or sharing output from the Service,
c) You must not use any output relating to a person for any purpose that could have a legal or material impact on that person, such as making credit, educational, employment, housing, insurance, legal, medical, or other important decisions about them,
d) Service may provide incomplete, incorrect, or offensive output that does not represent Smartsupp views. If output references any third party products or services, it doesn't mean the third party endorses or is affiliated with Smartsupp.
7.4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 7.1, THE SERVICE IS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED UNDER THE APPLICABLE LAW, SMARTSUPP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SMARTSUPP MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, BE AVAILABLE OR OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICE, OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE. UNLESS OTHERWISE AGREED, SMARTSUPP DOES NOT PROMISE ANY SERVICE LEVELS, INCLUDING RESPONSE TIMES FOR SUPPORT. SMARTSUPP MAY SCHEDULE DOWNTIME FOR ROUTINE MAINTENANCE OF THE SERVICE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. SERVICE DOES NOT REPLACE THE NEED FOR YOU TO MAINTAIN REGULAR DATA BACKUPS OR REDUNDANT DATA ARCHIVES. SMARTSUPP HAS NO OBLIGATION OR LIABILITY FOR DAMAGE, CORRUPTION, OR RECOVERY OF YOUR DATA.
8. Indemnification
8.1. Mitigation. If the Service is, or in Smartsupp's opinion is likely to infringe, misappropriate, or otherwise violate any third-party intellectual property right, then Smartsupp may, at its option and sole cost and expense:
a) obtain the right for you to continue to use the Service materially as contemplated by the Agreement;
b) modify or replace the Service, in whole or in part, to seek to make the Service (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality; or
c) by written notice to you, terminate the Agreement and require you to immediately cease any use of the Service, provided that if you comply with your post-termination obligations set forth in Section 10.3, you will be entitled to a refund of pro-rated amount of Subscription fees attributable to the period after the effective date of such termination.
8.2. Your Indemnification. You shall indemnify, defend, and hold harmless Smartsupp and its Affiliates from and against any and all loss, damage, claim, action, judgment, settlement, interest, penalty, fine, costs, or expenses, including attorneys’ fees and the costs of enforcing any right to indemnification hereunder incurred resulting from any action by a third party that arise out of or result from, or are alleged to arise out of or result from:
a) Your Data, including any processing of it by or on behalf of Smartsupp in accordance with the Agreement;
b) allegation of facts that, if true, would constitute your breach of any of your representations, warranties, covenants, or obligations under the Agreement; or
c) negligence or more culpable act or omission (including recklessness or willful misconduct) by you, or any third party on behalf of you, in connection with the Agreement.
8.3. Indemnification Procedure. Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified. The party seeking indemnification (“Indemnitee”) shall cooperate with the other party (“Indemnitor”) at the Indemnitor’s cost and expense. Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Indemnitor shall not settle any action without Indemnitee’s prior written consent. If the Indemnitor fails or refuses to assume control of the defense of such action, Indemnitee shall have the right, but no obligation, to defend against such action, including settling such action, in each case in such manner and on such terms as the Indemnitee may deem appropriate.
8.4. Sole Remedy. THIS SECTION 8 SETS FORTH YOUR SOLE REMEDIES AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICE OR ANY SUBJECT MATTER OF THE AGREEMENT INFRINGES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTY.
9. Limitation of Liability
9.1. EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED UNDER THE APPLICABLE LAW, IN NO EVENT WILL SMARTSUPP OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER YOU WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10. Term and Termination
10.1. Term.
a) the Agreement is concluded for an indefinite period of time. Termination of the Agreement also means termination of any currently effective Subscription.
b) initial Subscription term commences on the Subscription start date (the day when the Subscription fee is paid) and unless terminated earlier pursuant the Agreement’s express provisions, will continue for the agreed Subscription term. Subscription term will automatically renew for additional successive Subscription term of the same length as the previous one unless earlier terminated pursuant to the Agreement’s express provisions or either party gives the other party written notice of non-renewal. You shall file the notice of non-renewal by email sent to support@smartsupp.com or by using the functionality made available within the Service for this purpose by Smartsupp. In case of notice of non-renewal served by email, the notice must be delivered no later than 3 days before the end of the then-current term. Each renewal term is subject to payment of relevant fees. Upon Subscription termination, the user may continue to use the Service as a Free User.
10.2. Termination. In addition to any other express termination right set forth in the Agreement:
a) either party may terminate the Agreement effective on written notice to the other one, if the other one materially breaches the Agreement and such breach is incapable of cure, or remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach, and
b) Smartsupp may terminate the Agreement, effective on written notice, if you: (i) fail to pay any amount when due hereunder, (ii) breach any obligations or restrictions under Sections 3 or 4, (iii) file, or have filed against you, a petition for voluntary or involuntary bankruptcy or otherwise become subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, makes or seeks to make a general assignment for the benefit of its creditors; or apply for or have appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (iv) use the Service as Free User or Trial User.
10.3. Effect. Upon termination of the Agreement, except as expressly otherwise provided herein:
a) rights and licenses granted by Smartsupp to you hereunder will immediately terminate,
b) Smartsupp may destroy and permanently erase all Your Data and Confidential Information, provided that, for clarity, this obligation does not apply to any Resultant Data,
c) You shall immediately cease all use of the Service and within 15 days, or at Smartsupp written request permanently erase Smartsupp Confidential Information from all your systems, and certify to Smartsupp in writing that you have complied with this obligation,
d) if you terminate the Agreement pursuant to Section 10.2 (a), you will be relieved of obligation to pay the fees attributable to the period after the effective date of such termination, in all other cases all fees that would have become payable had the Subscription remained in effect until expiration of the current Subscription term will become immediately due and payable, and you shall pay such fees, together with all previously accrued but not yet paid fees. If Smartsupp is unable to charge them automatically to the payment method you last selected, you will pay the amount on receipt of Smartsupp invoice therefor.
10.4. Surviving Terms. The rights and obligation of the parties in the Agreement that, by nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement.
11. Final provisions
11.1. Entire Agreement. Agreement constitutes our sole and entire agreement with respect to its subject matter and supersedes all prior and contemporaneous agreements, with respect to such subject matter. In the event of a conflict between the documents constituting the Agreement, the documents shall apply in the following order: (i) order form, (ii) Terms of Service, (iii) remaining documents in order of their appearance in the Terms.
11.2. Assignment. Neither party may assign or otherwise transfer any of its rights or obligations under the Agreement, without prior written consent of the other party, provided that Smartsupp may assign the Agreement as a whole without your prior written consent to any Smartsupp Affiliate, or in case of a merger of with another entity, or sale or transfer of a majority of Smartsupp’s assets.
11.3. Force Majeure. In no event will Smartsupp be liable for any failure or delay in performance of the Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Smartsupp's reasonable control, including acts of God, flood, fire, earthquake, war, terrorism, cyber-attack (including DDoS), invasion, embargoes, strikes, passage of law, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Smartsupp may terminate the Agreement if a force majeure event continues for a period of 30 days or more.
11.4. Changes. Smartsupp may amend the Terms at its sole discretion. Smartsupp will notify the changes by email. All changes shall take effect on the date specified, which shall be at least 14 days from the date of notification of the changes and shall apply to all subsequent use of the Service. If you do not agree to the changes, you may terminate the Agreement effective upon the expiration of your currently effective Subscription term, which notice must be delivered to Smartsupp prior to the effective date of the change. In the event of notice under this paragraph, the Terms in force at the time the notice of termination is served shall apply during the notice period. Your continued use of the Service after the effective date shall mean that you accept and agree to the changes.
11.5. Notices. The requirement for written form is fulfilled if the electronic text is delivered to the other Party’s address. Smartsupp will send notices to your email address provided during registration or to any other email address you have used to communicate with Smartsupp. Notifications may also be delivered directly within the product, such as by notifications upon login.
11.6. References. Smartsupp may place your trade name, logo, trademark, or any other trade name on the Website in the references section and use it in its reference marketing documents.
11.7. Severability. If any term or provision of the Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, parties shall negotiate in good faith to modify the Terms so as to effect the original intent to the greatest extent possible.
11.8. Language Versions. The Terms may be prepared in multiple language versions. In the event of any discrepancy or inconsistency between language versions, the English version shall prevail.