Subscription Agreement

Last revision 2025-10-08

This Agreement is entered into by and between Smarty, LLC (“Smarty”) and the corporation, company, partnership, sole proprietorship, or other business entity executing this Agreement (“Subscriber”). Smarty and the Subscriber may each be referred to individually as a “Party” and collectively as the “Parties.”

This Agreement is effective as of the date the Subscriber clicks “Accepted and Agreed To” (the “Effective Date”). The Subscriber’s use of, and Smarty’s provision of, the Subscription Services (as defined below) are governed by the terms and conditions of this Agreement.

1. DEFINITIONS

“Agreement” refers to this Subscription Agreement, including: (i) the Sales Orders entered into by Subscriber or any Affiliate of Subscriber; (ii) the Product Terms; (iii) any schedules, exhibits, annexes, or addenda to this Subscription Agreement; and (iv) any materials incorporated by reference, including the Service Level Agreement.

“API Products” means the subscription-based application programming interfaces (APIs) provided by Smarty, which process Subscriber Data and return Output Data in response to authenticated API calls initiated by the Subscriber.

“Authorized Third Party” means any subcontractor, agent, implementer, integrator, or other third party that is authorized by Subscriber to perform services or implement solutions related to Subscriber’s access to or use of the Subscription Services on Subscriber’s behalf.

“Data Products” refers to datasets and data files provided on a subscription basis in a fixed structure and format (such as CSV, Excel, or JSON), delivered through the method specified in the Sales Order. These Data Products may be updated periodically and made available to the Subscriber under this Agreement. Data Products are not generated dynamically in response to Subscriber Data but may include Licensed Data and Smarty Data.

“Documentation” means the guides, manuals, technical materials, and other resources provided by Smarty to help the Subscriber implement, integrate, and use the API Products, as updated from time to time. The primary Documentation is available at https://www.smarty.com/docs.

“External System” means any software, hardware, platform, computer programming code (including open-source software), binary executable, script, or other technology not provided by Smarty that is used by the Subscriber in connection with the Subscription Services. External Systems include the Subscriber’s IT systems and third-party platforms, services, or integrations used in conjunction with the Subscription Services.

“Internal Business Purposes” means the use of the Subscription Services and the associated Output Data solely by the Subscriber and its Permitted Users for the Subscriber’s internal business practices, including but not limited to, administrative, analytical, operational support, or other internal processes conducted within the Subscriber’s organization. “Internal Business Purposes” may include embedding permitted API Products into the Subscriber’s website or application, where the API operates in the background to process data and deliver results to end-users interacting with the Subscriber’s interface. Internal Business Purposes exclude any use involving resale, sublicensing, public display, redistribution, or providing any portion of the Subscription Services or Output Data to third parties, including sharing or granting access in standalone or raw form, except as expressly permitted by a written license granted by Smarty.

“Licensed Data” means any data or content licensed to Smarty by a third-party data licensor which Smarty incorporates into or uses to generate Output Data or Data Products as part of the Subscription Services.

“Output Data” means any data, content, or other results made available to the Subscriber solely through the API Products in response to the Subscriber’s submission of Subscriber Data. Output Data may include, or be generated from, Smarty Data and Licensed Data.

“Permitted User” means any individual, including an employee, Account Representative, or Authorized Third Party, who is authorized by the Subscriber to access and use the Subscription Services on the Subscriber’s behalf and has been assigned a unique security key for such access, all subject to the terms and conditions of this Agreement and the Documentation.

“Product Terms” means the additional terms, restrictions, and copyright notices that apply to specific API Products Output Data, Data Products, or any incorporated Licensed Data under this Agreement. Product Terms may include both Smarty’s product-specific terms and third-party license terms governing the use of Licensed Data.

“Sales Order” means an ordering document or online confirmation page that specifies the Subscription Services to be provided, including the API Products, plan details (such as Lookup volume, processing speeds, and other features), Data Products, Subscription Term, features, fees, payment terms, upgrades, the Product Terms, and any additional terms or entitlements.

“Smarty Data” means data and content owned or independently developed by Smarty, and excludes Licensed Data and Subscriber Data.

“Smarty Technology” means all proprietary technology owned, controlled, or otherwise produced and created by Smarty that is used in connection with providing the Subscription Services, including software, features, tools, functionality, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other technical material or information. For the avoidance of doubt, this excludes third-party software, open-source components, and SDKs not owned by Smarty.

“Subscriber Data” means any information, datasets, or content, in any form or medium, that is submitted, transmitted, or made available by or on behalf of Subscriber to Smarty in connection with the use of the Subscription Services. Subscriber Data excludes Operational Data, B2B Relationship Data, Smarty Data, and Licensed Data generated by or available through the Subscription Services.

“Subscription Services” means the services provided by Smarty to the Subscriber under this Agreement on a subscription basis. These may include access to the API Products, Output Data, Data Products, and related Smarty Technology. Access to the Subscription Services is granted through unique authentication credentials (e.g., security keys) and is available for the duration of the applicable Subscription Term.

“Subscription Term” means the period the Subscriber is permitted to access and use the Subscription Services under an applicable Sales Order. The Subscription Term begins on the service activation date specified in the Dashboard or the applicable Sales Order and ends upon the earlier of: (i) the expiration date stated in the Sales Order, or (ii) the exhaustion of the total allotted number of Lookups. For the avoidance of doubt, unless otherwise specified in the Sales Order, the Subscription Term will end no later than one (1) year from the activation date, even if any portion of the allotted Lookups remain unused.

2. SUBSCRIPTION SERVICES

2.1. Provision of Subscription Services. Subject to Subscriber’s timely payment of all Subscription Fees, and in accordance with this Agreement, the applicable Sales Order, Product Terms, and Service Level Agreement, Smarty will provide the Subscription Services during the Subscription Term.

2.2. Service Level Agreement. Smarty provides a Service Level Agreement (“SLA”) for its API Products, which sets forth the applicable service availability commitments and performance standards. The SLA does not apply to services offered at no charge, including those provided under a Free Trial. Smarty may update the SLA from time to time; any such changes will not materially diminish the overall level of service availability during an active Subscription Term.

2.3. Technical Support. Smarty will provide Subscriber access to Smarty’s online support center at https://www.smarty.com/contact/support where Subscriber may contact support by chat, email, telephone, or by submitting a support case through a web-based form. Standard technical support services included with the Subscription Services are described in the SLA. Upgraded support tiers may be available for purchase and, if applicable, will be set forth in the Sales Order. Upgraded support tiers or enhanced support options may be subject to additional fees.

2.4. Access to and Use of API Products. Subject to the terms of this Agreement, the Sales Order, and the Product Terms, Subscriber may access and use the API Products solely for its Internal Business Purposes during the Subscription Term.

2.5. License to Data. Smarty grants Subscriber a limited, non-exclusive, non-transferable, and non-sublicensable license to use and store the specified Data Products and Output Data subscribed to in an applicable Sales Order. Unless otherwise stated in a Sales Order, Subscriber may retain and use Data Products and Output Data on a perpetual basis following the end of the Subscription Term, provided such use remains consistent with the terms of this Agreement and the Product Terms. Subscriber may use Data Products and Output Data solely for Internal Business Purposes and only in the form delivered by Smarty.

2.6. Documentation. Smarty grants Subscriber a limited right to use the Documentation solely to support Subscriber’s permitted use of the API Products, subject to the same limitations set forth in this Agreement. Smarty may update the Documentation from time to time to reflect changes in the API Products, features, or best practices.

2.7. Additional License and Product Terms. Subscriber’s use of the Subscription Services is governed by this Agreement, the applicable Sales Order, and the Product Terms. A Sales Order may include any additional license terms granted to Subscriber, which may supplement or override the general Product Terms and the terms of this Agreement. Certain API Products and Data Products may incorporate or rely on Licensed Data provided to Smarty by third-party data licensors. Subscriber acknowledges and agrees that its access to and use of any such Smarty Data and Licensed Data is subject to the applicable Product Terms, including third-party license restrictions, permitted use limitations, and any copyright or attribution notices.

2.8. Sales Order. By entering into a Sales Order, Subscriber agrees to be bound by the Product Terms and any license grants referenced therein. In the event of a conflict between this Agreement and a Sales Order, including the Product Terms or license types specified therein, the terms of the Sales Order will control solely with respect to the Subscription Services and specific API Products identified in that Sales Order. Each Sales Order is incorporated into this Agreement by reference.

3. ACCOUNT ADMINISTRATION

3.1. Account Setup and Administration. To access the Subscription Services, Subscriber must create an account through Smarty’s web-based interface (the “Dashboard”). Access to the Dashboard is provided using login credentials designated by Subscriber, which are connected to an account-specific domain and a unique Smarty account ID.

Subscriber shall designate at least one individual (the “Account Representative”) authorized to register and manage the account, oversee security key generation and control, configure user settings, monitor usage, manage team permissions and notifications, and act as the primary contact for all notices and account-related communications.

Subscriber is solely responsible for maintaining the confidentiality and security of its login credentials and security keys, and for all activities conducted under its account, whether authorized or unauthorized. Subscriber must promptly notify Smarty of any actual or suspected unauthorized access to, or loss or compromise of, its account credentials or security keys.

3.2. B2B Relationship Data. In connection with the setup, administration, and ongoing use of the Subscription Services, Subscriber may provide Smarty with administrative, transactional, or account-related information necessary to manage the business relationship between the Parties. This may include, but is not limited to, account registration details, billing and payment records, user assignments, technical support communications, and other related interactions (“B2B Relationship Data”). B2B Relationship Data is exchanged outside the core functionality and processing of the Subscription Services and does not include analytics derived from Subscriber’s use of the Subscription Services. While certain B2B Relationship Data may be accessible through the Dashboard, it is not considered part of the Subscription Services. Smarty processes B2B Relationship Data in its role as an independent controller, in accordance with applicable laws and its Privacy Policy.

3.3. Subscription Utilization. Subscriber’s use of the Subscription Services, including access to API Products, is subject to the allotted number of Lookups as specified in the applicable Sales Order, the online pricing page, or as displayed in the account Dashboard. “Lookups” means a unit of measurement for Subscriber’s usage of the API Products, generally corresponding to a single search, keystroke, address submission, or other data query that triggers the retrieval of Output Data. The specific calculation or counting method for Lookups may vary by API Product, as described in the applicable Product Terms, Sales Order, or Documentation. For example, one API Product may count a complete address submission as a single Lookup, while another may count each individual keystroke.

Utilization may also include, without limitation, factors such as data processing speeds and plan-specific limitations, including rate limits, usage caps, or other technical parameters. Subscriber must comply with all Lookup allotment limits and shall not attempt to bypass or circumvent such limits. Smarty may monitor Subscriber’s use of the Subscription Services and implement rate limits, access controls, or other technical measures to maintain system integrity and enforce compliance with this Agreement.

3.4. Free Trial. To activate a Free Trial, Subscriber must create an account through Smarty’s Dashboard. Smarty may provide access to certain API Products or Data Products on a free-trial basis, subject to limited Lookups, feature restrictions, and dataset limitations (“Free Trial”). Upon expiration of the Free Trial, continued access to the Subscription Services will require a paid subscription and payment of applicable fees under a valid Sales Order. The Free Trial is provided “as is,” without warranties of any kind and without liability. Smarty may suspend or terminate access to the Free Trial at any time, with or without cause, and without liability. Only one Free Trial account may be created per individual email address per lifetime.

4. AFFILIATES, AUTHORIZED THIRD PARTIES, AND RESELLERS

4.1. Affiliate Use Rights. For purposes of this Agreement, “Affiliate” means, with respect to any specified entity, any department, division, business unit, or legal entity that controls, is controlled by, or is under common control with such entity. With Subscriber’s authorization, Subscriber’s Affiliates may operate under this Agreement by entering into their own Sales Order and agreeing to its terms. Where expressly permitted in a Sales Order, an Affiliate may access and use the Subscription Services for its Internal Business Purposes.

If an Affiliate accesses the Subscription Services under the Subscriber’s account, that Affiliate must be expressly identified in the applicable Sales Order and approved by both Smarty and Subscriber. In such cases, Subscriber is responsible for the Affiliate’s use of the Subscription Services and any failure to comply with this Agreement. If the Affiliate enters into its own Sales Order and operates under a separate account, the Affiliate is solely responsible for its own compliance and use of the Subscription Services.

4.2. Authorized Third Parties. Subscriber may permit an Authorized Third Party, identified in a Sales Order, to access the Subscription Services solely to assist with implementation, integration, or related services for Subscriber’s direct benefit and Internal Business Purposes, as set forth in this Agreement. Authorized Third Parties may not use the Subscription Services for their own purposes. The Subscriber shall ensure that its Authorized Third Party complies with all terms of this Agreement and shall remain fully liable for any acts or omissions of such Authorized Third Party.

4.3. Reseller Purchases. A “Reseller” means a third party authorized by Smarty to resell or otherwise provide access to the Subscription Services under a separate agreement, whether or not the Reseller receives any form of remuneration. If the Subscriber purchases Subscription Services through an authorized Reseller or partner of Smarty, such use is governed by both this Agreement and the separate end-user agreement between the Subscriber and the Reseller. Subscriber must submit all purchase orders or ordering documents directly to the Reseller, and Section 5 (Fees and Payment) of this Agreement does not apply to Subscriber for purchases made through an authorized Reseller.

Subscriber’s right to terminate or cancel any part of the Subscription Services is governed solely by the end-user agreement with the Reseller; however, the Reseller may not offer terms that conflict with this Agreement. Resellers are not authorized to modify this Agreement or make any commitments on behalf of Smarty. Smarty is only bound by the terms set forth in this Agreement.

If the Reseller ceases to be authorized by Smarty, including due to non-payment, Subscriber’s continued access to the Subscription Services after the end of the then-current Subscription Term may be conditioned on Subscriber entering into a direct agreement with Smarty. In such case, Subscriber may also be required to pay any outstanding fees that the Reseller failed to remit to Smarty for the Subscription Services provided to Subscriber. Smarty may suspend or terminate Subscriber’s access to the Subscription Services upon written instruction from the Reseller or in accordance with this Agreement.

5. FEES AND PAYMENT

5.1. Subscription Fees and Taxes. Subscriber agrees to pay the applicable “Subscription Fees”, as listed on the pricing page or set forth in a Sales Order, for use of the Subscription Services during the Subscription Term. Subscription Fees are exclusive of any taxes, levies, duties, or similar governmental charges, including but not limited to sales, use, value-added, or withholding taxes (“Taxes”). The Subscriber shall pay to Smarty all applicable Taxes itemized in a Sales Order or invoice, unless a valid tax exemption certificate is provided. Smarty is responsible for any taxes assessed against it based on its income, property, or employees.

5.2. Recurring Billing. To enable recurring billing, the Subscriber must enter a valid electronic payment method in the account Dashboard and select automatic payments. By enabling this feature, the Subscriber authorizes Smarty to charge the designated payment method on a recurring basis whether monthly, annually, or another applicable billing cycle for the Subscription Fees associated with access to the Subscription Services. The payment method must remain valid and up to date throughout the Subscription Term. Billing will begin on the date the payment method is entered and the applicable Subscription Services are activated.

5.3. Payment Processing. Payment processing for the Subscription Services is handled exclusively by a third-party payment processor. Smarty does not store or retain full credit card or payment information and is authorized to initiate and process payments solely through its PCI DSS-compliant third-party payment provider.

Where Subscriber designates the use of a different or additional third-party payment processor network, Subscriber shall be solely responsible for all associated fees and charges (including registration, participation, and payment processing fees). Smarty may invoice such fees together with the Subscription Fees or on a separate invoice.

5.4. Invoicing. If Subscriber purchases an enterprise Subscription, or as otherwise specified in a Sales Order, Smarty will invoice the Subscriber for the applicable Subscription Term. Each invoice will be due and payable upon receipt, or as otherwise set forth in the applicable Sales Order (the “Payment Due Date”). Payment may be made via ACH, wire transfer, or credit card. Subscriber's obligation to pay all Subscription Fees is non-cancellable, and except as explicitly set forth in this Agreement, Subscription Fees are non-refundable. No form requirements, including the need to include a purchase order number on the invoice, shall delay or limit Subscriber’s obligation to pay all undisputed Subscription Fees by the Payment Due Date.

5.5. Delinquent Payments. If Subscription Fees are not paid by the Payment Due Date, they may accrue interest at 1.5% per month (or the maximum rate allowed by law). Subscriber is responsible for all reasonable costs of collection, including attorneys’ fees and collection agency charges. Smarty may suspend access to the Subscription Services if any undisputed fees remain unpaid for more than forty-five (45) days. If payment remains outstanding thirty (30) days after notice of non-payment, Smarty may refer the debt to a third-party collection agency. Subscriber acknowledges that access to the Subscription Services will be suspended or revoked for non-payment.

5.6. Disputes. If Subscriber disputes all or some of the invoiced Subscription Fees (“Fee Dispute”), Subscriber will provide a written notice to Smarty that reasonably describes the nature of the Fee Dispute within thirty (30) days from receiving the applicable invoice. The Parties will use good faith efforts to resolve the Fee Dispute.

5.7. Price Changes. Smarty reserves the right to increase Subscription Fees for any renewal term by providing Subscriber with advance notice of such increase. Such notice may be provided via email, through the pricing page on Smarty’s website, as a notification posted through the Dashboard, or by other reasonable means, in each case prior to the start of the renewal period.

5.8. Refund Policy. Refunds will be issued only in accordance with Smarty’s refund policy as set forth in this Agreement. Subscriber may contact support to resolve any processing or billing errors. If a Subscriber is dissatisfied with the Subscription Services, a full or partial refund, or a credit may be granted within thirty (30) days of the initial service activation date, based on usage and the number of Lookups consumed. For certain API Products, refunds are limited to the value of any remaining unused Lookups. Refunds are available only upon cancellation of the applicable subscription and are not available for invoiced Sales Orders.

6. TERM AND TERMINATION

6.1 Term of Agreement. This Agreement begins on the Effective Date and will remain in effect until the earlier of: (i) one (1) year after the expiration or termination of the last active Subscription Term; or (ii) the termination of this Agreement in accordance with its terms.

6.2. Termination for Cause. Either Party may terminate this Agreement or any active subscription upon written notice if: (i) the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice; or (ii) the other Party becomes insolvent, assigns assets for the benefit of creditors, becomes subject to bankruptcy or insolvency proceedings, or ceases normal business operations.

6.3. No Cancellation or Refunds. Except as required by applicable law or expressly stated in a Sales Order, Subscriber may not cancel or terminate any Sales Order prior to the end of its Subscription Term. Subscriber may stop using the Subscription Services at any time; however, all fees for the full Subscription Term will remain due and payable. No refunds, credits, or reductions in fees will be provided upon termination or non-use of the Subscription Services.

6.4. Effect of Termination or Expiration. Upon termination or expiration of this Agreement or any Sales Order (i) Subscriber’s rights to access and use the Subscription Services will immediately terminate; (ii) use or retention of certain Output Data may be subject to additional licensing requirements, including the purchase of a perpetual license. If such a license is not obtained, Subscriber may be required to delete or remove the affected Output Data from its systems, as set forth in the applicable Sales Order or Product Terms; and (iii) all Output Data will remain governed by this Agreement, including any surviving obligations and applicable Product Terms. For the avoidance of doubt, termination of this Agreement will automatically terminate all active Sales Orders for Subscription Services.

6.5. Survival. Any provisions of this Agreement that by their nature should survive termination shall survive, including, without limitation, provisions relating to confidentiality, intellectual property ownership, disclaimers, limitations of liability, fees and payment obligations, governing law and jurisdiction, and any Product Terms governing post-termination use of Output Data.

7. SUBSCRIBER RESPONSIBILITIES AND USAGE RESTRICTIONS

7.1. Subscriber Responsibilities. Subscriber shall: (i) be solely responsible for the accuracy, legality, and validity of all Subscriber Data, and for ensuring it was lawfully collected with all necessary rights and permissions obtained; (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Services and promptly notify Smarty of any such incidents; (iii) properly configure and encrypt all Subscriber Data transmitted through the Subscription Services in accordance with the applicable Documentation, and be solely responsible for issues resulting from its own configurations or actions, including but not limited to misconfigurations, service disruptions, or performance issues; (iv) use the Subscription Services, along with any optional tools, applications, SDKs, plug-ins, or open-source components only in accordance with the accompanying Documentation and as permitted under its terms; and (v) ensure compliance with all relevant data privacy laws and regulations.

7.2. Prohibited Uses. Subscriber, its Permitted Users, and Affiliates shall not use or permit use of the Subscription Services or any component thereof to: (i) license, sell, lease, sublicense, transfer, assign, rebrand, or white-label the Subscription Services for distribution to third parties without a distribution license from Smarty; (ii) unlawfully store, process, transmit, publish or publicly disclose personal data; (iii) use the Subscription Services to transmit any viruses, malware, or harmful code; (iv) reverse engineer, decompile, disassemble, copy, modify, or create derivative works based on the Subscription Services; (v) interfere or attempt to access any data or systems belonging to other Smarty customers; (vi) disable or bypass any security features of the Subscription Services; (vii) develop, or assist in developing, competing products or services, or conduct benchmarking or performance testing for such purposes or for commercial gain; (viii) distribute the Output Data; (ix) promote unlawful activities or upload, transmit or otherwise distribute material that is threatening or otherwise illegal; (x) use in any way that infringes Smarty’s or its third-party data licensors’ copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy; or (xi) remove, obscure, or alter proprietary notices, trademarks, copyright information, or legal attributions contained in the Subscription Services.

7.3. Data Extraction and Address Compilation Prohibition. Subscriber shall not use scraping, crawling, data mining, bots, automated tools, or similar methods to extract data from the Subscription Services or any API Products, particularly to access or compile address data not already in Subscriber’s lawful possession. This includes constructing mailing lists or address databases for internal use, third-party use, or commercial exploitation.

7.4. Immediate Suspension for Prohibited Use. Any violation of Sections 7.2 (Prohibited Uses) and 7.3 (Data Extraction and Address Compilation Prohibition) may, upon notice, result in the immediate suspension of access to the Subscription Services, notwithstanding any contrary terms in Section 6.2 (Termination for Cause) of this Agreement.

7.5. High-Risk Use Disclaimer. The Subscription Services and any component thereof provided by Smarty (including, but not limited to, rooftop geocoding and other location data) are not designed, intended, or warranted for use in emergency, life-critical, safety-critical, or other high-risk applications (“Excluded Applications”). Excluded Applications include, but are not limited to emergency response systems, medical device or organ transport logistics, life-support systems, autonomous vehicles, aviation or nuclear operations, weapons control, and other systems where failure could result in death, personal injury, or significant property or environmental damage. Subscriber acknowledges that the Subscription Services are not intended for use in Excluded Applications. Subscriber acknowledges and agrees that any use of the Subscription Services in connection with Excluded Applications is at Subscriber’s sole risk and responsibility. Smarty does not guarantee the accuracy, timeliness, completeness, or applicability of any content or data used in or generated by such applications and disclaims any and all liability arising from such use.

7.6. Software Development Kits (“SDKs”). Smarty may offer Software Development Kits to assist Subscriber with implementing the Subscription Services. Use of SDKs is optional and at Subscriber’s sole discretion. SDKs are provided “as is,” without warranties of any kind.

7.7. Open-Source Software Compliance. Use of any open-source software components included or distributed by Smarty is subject to the terms of their respective open-source licenses, which are incorporated by reference and available upon request. Subscriber agrees to comply with all such open-source license terms.

7.8. External Systems. Subscriber’s use of any External System is governed solely by its agreement with the applicable provider and not by this Agreement. This section does not modify or limit Subscriber’s responsibilities or warranties under this Agreement. Smarty does not control and is not responsible for any External System, including its security, functionality, availability, operation, interoperability, or the access to or use of Subscriber Data by such External Systems.

8. INTELLECTUAL PROPERTY AND OWNERSHIP

8.1. Proprietary Rights. All right, title, and interest in and to the Subscription Services including the API Products, Smarty Data, Smarty Technology, and Documentation, together with all associated intellectual property rights, are and shall remain the exclusive property of Smarty. This Agreement does not convey to Subscriber any ownership interest or intellectual property rights in the Subscription Services or any component thereof, except for the limited license rights expressly granted herein. All rights not expressly granted are reserved by Smarty and its licensors.

8.2. Third-Party Data Licensors. Certain Licensed Data made available through the Subscription Services may be owned by third-party data licensors. Subscriber’s use of such data is subject to applicable third-party license terms, including any attribution, usage, or retention requirements specified in the Product Terms. All intellectual property rights in Licensed Data remain with the respective licensors, and nothing in this Agreement limits a third-party licensor’s right to enforce its intellectual property independently.

8.3. Subscriber Data. As between the Parties, Subscriber retains all right, title, and interest in and to the Subscriber Data. This ownership does not extend to any standardized address elements, metadata, enhancements, or attributes derived from or generated through use of the Subscription Services or Output Data, which are not considered Subscriber Data and may be owned or controlled by Smarty or its licensors. For clarity, data automatically collected by Smarty in connection with the operation and delivery of the Subscription Services (e.g., utilization or performance data) is considered Operational Data and is governed by Section 9.1.

Subscriber represents and warrants that it has obtained all necessary rights, authorizations, and permissions to provide Subscriber Data to Smarty and to permit its use in accordance with this Agreement. Subscriber grants Smarty a limited, non-exclusive, non-transferable license to access, use, store, process, and disclose Subscriber Data solely to: (i) provide and support the Subscription Services; (ii) fulfill Smarty’s obligations under this Agreement; and (iii) to use data derived from Subscriber Data for internal business purposes, including but not limited to analytics, diagnostics, service optimization, and product development, subject to any applicable privacy upgrades selected by Subscriber (as further described in Section 11.3 Enhanced Privacy).

8.4. Trademarks and Branding. Nothing in this Agreement grants Subscriber any rights to use Smarty’s name, trademarks, logos, domain names, or other brand features. Any reproduction, modification, or distribution of content from Smarty’s website is prohibited unless expressly authorized in a Sales Order.

9. OPERATIONAL DATA AND FEEDBACK

9.1. Operational Data. Smarty may collect and use technical and diagnostic information generated through Subscriber’s use of the Subscription Services, including data generated through API calls and related usage activity. This may include data related to service performance, usage patterns, request and response activity, connection details, and other operational metrics and metadata (“Operational Data”). Smarty may use Operational Data for internal business purposes, such as delivering and improving the Subscription Services, monitoring usage, enhancing security, performing analytics, supporting product development, complying with legal and regulatory obligations, and conducting marketing and sales activities.

9.2. Feedback. Subscriber may, from time to time, provide Smarty with suggestions, ideas, or other feedback regarding the Subscription Services (“Feedback”). Subscriber grants Smarty a royalty-free, worldwide, transferable, sublicensable, irrevocable, and perpetual license to use, reproduce, modify, and incorporate such Feedback into its products and services without restriction.

10. CONFIDENTIALITY

10.1. Confidential Information. As used in this Agreement, “Confidential Information” refers to any non-public, confidential, or proprietary information of either Party or its Affiliates that is marked as confidential, proprietary, or secret, or that a reasonable person under the circumstances would understand to be confidential. Subscriber Data constitutes Confidential Information of Subscriber. Information is not Confidential Information that: (i) is known by the receiving Party prior to disclosure under this Agreement; (ii) is or becomes generally available to the public other than because of a breach of this Agreement; (iii) is or becomes available to the receiving Party on a non-confidential basis from a source other than the disclosing Party or any of its Affiliates; (iv) is independently developed by or for the receiving Party without reference to the disclosing Party’s Confidential Information; or (v) the disclosing Party indicates in writing is not confidential.

10.2. Confidentiality Obligations. The receiving Party shall treat the disclosing Party’s Confidential Information as confidential using the same degree of care that the receiving Party uses for its own confidential information of a like nature, but no less than reasonable care. The receiving Party will limit access to the disclosing Party’s Confidential Information to its Affiliates and its and its Affiliates’ employees, directors, contractors, advisors, legal counsel or agents (“Representatives”) with a need to know the information who are under written obligations of confidentiality substantially as restrictive as those herein. The receiving Party and its Representatives shall not use any of the disclosing Party’s Confidential Information other than to fulfill the purposes of this Agreement. The receiving Party is liable for any unauthorized disclosure or use of the disclosing Party’s Confidential Information by any of its Representatives. Notwithstanding the foregoing, Subscriber acknowledges and agrees that Smarty may use Subscriber’s Confidential Information internally at Smarty for sales and support analytics and training.

10.3. Compelled Disclosure. If the receiving Party is required or formally requested to disclose the disclosing Party’s Confidential Information in response to a requirement of a court or governmental agency or where otherwise required by law, the receiving Party shall, to the extent legally permissible, promptly notify the disclosing Party of such request. The receiving Party shall use reasonable efforts, at the disclosing Party’s sole expense, to cooperate in efforts by the disclosing Party to obtain a protective Sales Order or remedy.

10.4. Duration of Confidentiality Obligations. In the event the Parties previously executed a confidentiality or non-disclosure agreement (the “NDA”) related to Subscriber’s prospective subscription to the Subscription Services, the terms of this section will supersede the NDA after the Effective Date. The receiving Party’s confidentiality obligations continue for three (3) years following the end of the Subscription Term, except that the receiving Party shall continue to keep confidential (i) any trade secrets of the disclosing Party for so long as that information remains a trade secret under applicable law; and (ii) any personal data to the extent required by applicable law.

11. DATA PROTECTION

11.1. Scope and Applicability. To the extent that any Subscriber Data submitted or transmitted through the Subscription Services is subject to data protection or privacy laws that require a data processing arrangement, the terms of an applicable Data Processing Addendum (“DPA”) shall apply and are incorporated by reference into this Agreement. The DPA applies only as required by applicable law and does not create or imply a determination by Smarty as to the legal classification of Subscriber Data.

11.2. Data Compliance. Subscriber represents and warrants that it has obtained all necessary rights, authorizations, and permissions to provide Subscriber Data to Smarty and to permit its use in accordance with this Agreement. Subscriber is solely responsible for ensuring that its use of the Subscription Services and submission of Subscriber Data complies with all applicable laws and regulations, including obligations relating to notice, authorization, data usage, and any cross-border data transfers. Smarty does not determine the legal status or classification of any submitted data and processes such data solely in accordance with this Agreement and, where applicable, the terms of an executed DPA.

11.3. Enhanced Privacy. “Enhanced Data Privacy” (“EDP”) is an optional feature available under certain subscription plans, and will be specified in a Sales Order. If enabled, EDP guarantees that Subscriber Data, including input request data, is processed solely in transient memory (e.g., RAM) and is not stored or retained after the request is completed. Smarty may maintain a limited amount of Operational Data such as Lookup volume, timestamps, and account identifiers for internal reporting, diagnostics, and service integrity. Under EDP, the only data retained is Operational Data necessary to maintain the availability and performance of the Subscription Services. As a result, Subscriber data processed under EDP is excluded from internal analysis, performance tuning, and product development.

11.4. Cloud Infrastructure. Subscriber acknowledges that the Subscription Services are hosted on third-party cloud infrastructure providers (“Cloud Service Providers”) who supply the underlying computing resources used to operate Smarty’s technology architecture. Cloud Service Providers do not access, control, or process Subscriber Data submitted through the Subscription Services and are responsible solely for the hosting infrastructure and physical data center components.

11.5. Information Security. Smarty has implemented, and will maintain, appropriate technical and organizational measures (“Security Measures”) designed to: (i) manage risks to its network and information systems; (ii) protect Subscriber Data against Security Breaches; and (iii) preserve the security, availability, and confidentiality of Subscriber Data. These measures are further described in the Security Measures document, which is incorporated into the DPA or available upon request.

Subscriber is responsible for maintaining appropriate security safeguards within its own environment, including: (i) allowing access only to authorized personnel as Permitted Users; (ii) properly configuring its implementation of the API Products; and (iii) ensuring the security of any Subscriber Data under its control.

12. WARRANTIES AND REMEDIES

12.1. Limited Performance Warranty. Smarty warrants that, during the Subscription Term, the API Products will perform in accordance with the then-current Documentation and meet the service levels set forth in the applicable SLA. This warranty applies only when the Subscription Services are accessed and used in compliance with the Documentation, the applicable Product Terms, and this Agreement. Subscriber’s remedies under this warranty are exclusively limited to (i) termination for cause as provided in this Agreement and (ii) the service credits described in the SLA.

12.2. Additional Warranties. Smarty represents and warrants that: (i) it possesses all necessary rights, licenses, and consents to grant Subscriber access to and use of the Subscription Services, including any Licensed Data, as set forth in this Agreement and the applicable Product Terms; (ii) to its knowledge, the Subscription Services, when used by Subscriber in compliance with this Agreement and the Documentation, do not infringe or misappropriate the intellectual property rights of any third party; and (iii) it will perform its obligations under this Agreement in compliance with all applicable laws and regulations.

12.3. Limitations of the Internet. Subscriber acknowledges that internet-based services are inherently subject to delays, network latency, interruptions, data loss, packet loss, and other limitations. Smarty is not responsible for any such issues caused by networks, systems, or communications not within its direct control.

12.4. Exclusive Infringement Remedies. If the Subscription Services or any component thereof becomes, or in Smarty’s reasonable judgment is likely to become, the subject of a third-party infringement claim, Smarty may, at its option and expense: (i) replace the allegedly infringing component with non-infringing technology that is materially and functionally equivalent or superior; (ii) modify the component to avoid infringement without materially reducing functionality; or (iii) obtain a license permitting Subscriber to continue using the component.

If a court of competent jurisdiction issues an injunction preventing Subscriber’s continued use of the Subscription Services, or none of the foregoing options are available on commercially reasonable terms, Subscriber must cease using the affected components, and Smarty will refund any pre-paid fees on a pro-rata basis for the unused portion of the Subscription Term. This section constitutes Smarty’s entire liability and Subscriber’s sole and exclusive remedy for any actual or alleged infringement of third-party rights by the Subscription Services.

12.5. Exclusion of Other Warranties. Except for the warranties expressly set forth in this Agreement, the Subscription Services, API Products, Data Products, Output Data, Smarty Data, Licensed Data, Documentation, and all related content are provided without warranty of any kind. To the maximum extent permitted by applicable law, Smarty and its third-party data licensors disclaim all other warranties, conditions, and representations, whether express, implied, statutory, or otherwise, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, accuracy, availability, or non-infringement.

Smarty does not warrant that the Subscription Services or any optional tools, SDKs, plug-ins, applications, extensions, downloadable executable files, or open-source software components provided or made available by Smarty will be uninterrupted, error-free, completely secure, immune from vulnerabilities, or meet Subscriber’s specific requirements or operate with Subscriber’s External System or third-party platforms. All optional tools and components are provided “as is” and at Subscriber’s sole risk. Smarty disclaims all liability arising from or related to the use or inability to use any such optional items, whether or not used in connection with the Subscription Services.

13. LIMITATION OF LIABILITY

13.1. Exclusion of Certain Damages. To the maximum extent permitted by applicable law, neither party shall be liable to the other for any indirect, incidental, consequential, special, punitive, or exemplary damages, including but not limited to loss of profits, revenue, goodwill, data, or use, even if advised of the possibility or foreseeability of such damages.

13.2. Limitation on Aggregate Liability. Subject to Section 13.3 below, each party’s total aggregate liability arising out of or relating to this Agreement shall not exceed the total fees actually paid by Subscriber to Smarty under the applicable Sales Order during the twelve (12) months immediately preceding the event giving rise to the claim.

13.3. Exceptions. The limitations and exclusions set forth in Section 13 (Limitation of Liability) shall not apply to: (i) Subscriber’s violation of any usage policies, including Excluded Applications and Prohibited Uses; (ii) Subscriber’s use of the Subscription Services beyond the scope of the licenses or access rights granted; (iii) Subscriber’s failure to pay fees when due; (iv) Subscriber’s breach of Smarty’s intellectual property rights; and (v) Liability arising from willful misconduct, fraud, or any liability that cannot be limited or excluded by law.

14. GENERAL TERMS

14.1. Force Majeure. Neither Party will be liable to the other for any failure to perform any of its obligations under this Agreement during any period in which performance is delayed by circumstances not within such Party’s reasonable control, such as a natural disaster, act of war or terrorism, riots, fires, acts or orders of government, labor disruption, internet or telecommunication outages or interruptions, hacking or similar incidents, or power outages.

14.2. Changes to this Agreement. Smarty may revise this Agreement at any time. If a revision materially affects the rights or obligations under this Agreement, Smarty will use reasonable efforts to notify the applicable contacts established in the Dashboard, including by email. In certain cases, continued access to the Subscription Services may require express acceptance of the revised terms. Unless otherwise specified, revisions to this Agreement will take effect at the beginning of the next Subscription Term following notice. If the revised terms are not accepted, the sole and exclusive remedy is to decline renewal of the Subscription.

This section applies solely to Smarty’s right to revise standard terms, such as those available online. All other modifications must comply with the requirements of Section 14.10 (Amendments; Waivers).

14.3. U.S. Export Restrictions. The Subscription Services may be subject to laws and regulations of the United States and other jurisdictions (“Export Laws”). Subscriber represents that it is not a sanctions target and is not on any of the relevant U.S. government lists of prohibited persons, denied parties or similar lists. Subscriber shall not, and shall ensure that its Affiliates, Permitted Users, and internal users do not, export, transfer or otherwise access or use the Subscription Services in any country subject to an embargo or other sanction by the United States or otherwise in violation of any Exports Laws.

14.4. U.S. Government End Users. If Subscriber is a government body, the following shall apply: The Subscription Services are a “Commercial Item,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Subscription Service” as such term is used in 48 C.F.R. §12.212. Consistent with 48 C.F.R. §12.212, the Commercial Computer Subscription Service is being licensed to U.S. Government end users (i) only as Commercial Items and (ii) with only those rights as are granted to, and restrictions and limitations imposed upon, all other Subscribers pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.

14.5. Publicity. Smarty may use Subscriber's name, logo, and indicia on its website and in marketing materials to indicate Subscriber as a current or former customer. However, any use in press releases, partnership announcements, or materials specifically related to this Agreement requires Subscriber's prior written consent.

14.6. Assignment. Neither Party may assign, delegate, or sub-license this Agreement, any Sales Order, subscription, or any of its rights or obligations under this Agreement, whether voluntarily, involuntarily, or by operation of law, without the prior written consent of the other Party. Any attempted assignment without such consent will be null and void.

14.7. Change of Control. Neither Party may, without the prior written consent of the other Party: (i) sell, transfer, or other dispose of all or substantially all of its assets; (ii) merge with or into another entity; (iii) consolidate with another entity; or (iv) permit any person or entity to acquire, directly or indirectly, more than fifty percent (50%) of its outstanding voting securities or other ownership interests. Any attempted change of control in violation of this section shall constitute a material breach of this Agreement.

14.8. Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of Utah, regardless of conflicts of law rules. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in Salt Lake City, Utah. Each Party irrevocably submits to the exclusive jurisdiction and venue of such courts for any such suit, action, or proceeding and waives any objection to jurisdiction or venue with respect to such courts.

14.9. Dispute Resolution and Arbitration. Any dispute, claim, or cause of action arising out of or relating to this Agreement, including its negotiation, enforcement, performance, breach, or interpretation (“Dispute”), shall be resolved by final and binding arbitration administered by JAMS under its then-current Streamlined Arbitration Rules and Procedures. The arbitration shall be conducted by a single neutral arbitrator in Salt Lake City, Utah, unless otherwise agreed in writing. Judgment on the award may be entered in any court having jurisdiction.

Each Party waives the right to a jury trial or bench trial and agrees to resolve all Disputes through individual arbitration. Class, collective, and representative actions are expressly waived and prohibited. Each Party shall bear its own attorneys’ fees and expenses and shall share equally in the costs of arbitration, unless the arbitrator awards fees or costs to the prevailing Party in their discretion.

Nothing in this Agreement prevents either Party from seeking interim injunctive or equitable relief in a court of competent jurisdiction, including to prevent the actual or threatened misuse of intellectual property, confidential information, data privacy, or other proprietary rights, pending the outcome of arbitration.

Notwithstanding the above, either Party may bring an action in court to (i) collect undisputed amounts due under this Agreement or (ii) resolve claims that qualify for small claims court under applicable law.

14.10. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each Party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the Party claiming such waiver. No provision of any purchase order or other business form provided by Subscriber will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

14.11. Notices. Any notice required or permitted by this Agreement shall be sent electronically in writing to the primary email address provided for Smarty and Subscriber as outlined in the Sales Order or registered as the Account Representative (as defined in Section 3.1, Account Setup and Administration). Such electronic transmission shall be deemed delivered on receipt during business hours, or on the next business day if received outside of business hours. The primary email address for Smarty is: legal@smarty.com

14.12. No Third-Party Beneficiaries. No person or entity not a party to this Agreement shall be entitled to rely on its terms; provided that Smarty’s third party data licensors may rely on Sections 12.5 (Exclusion of Other Warranties) and 13 (Limitation of Liability) of this Agreement.

14.13. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

14.14. Independent Contractors. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.

14.15. Entire Agreement. This Agreement, together with any Product Terms or other terms contained in schedules, exhibits, addenda, annexures and applicable Sales Orders (including linked terms), comprises the entire agreement between Subscriber and Smarty and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter contained herein. All prior agreements regarding the subject matter contained herein are hereby terminated. Section titles or captions contained in this Agreement are inserted only as a matter of convenience and for reference and do not define, limit, extend, or describe the scope of this Agreement or the intent of any provision hereof.