Smart Warehousing Website Terms of Use

THESE WEBSITE TERMS ARE BETWEEN YOU AND ANY OTHER INDIVIDUAL OR ENTITY ON WHOSE BEHALF YOU ACCEPT THESE TERMS (collectively “you” or “user”) AND SMART WAREHOUSING, LLC, ITS AFFILIATES AND SUBSIDIARIES (collectively “SW”):

All SW web properties, including but not limited to smarwarehousing.com and smartvisibility.com (the “SW Web Sites”), are Internet-based online information and communication services operated by SW. SW Web Sites are accessible by Users worldwide. User participation on SW Web Sites is voluntary and any information, personal or otherwise, contributed to SW Web Sites is done so upon the User’s own initiative. Users may discontinue participation at any time. SW considers its Users’ privacy to be of the utmost importance. Information posted or submitted to the SW Web Sites is governed by SW's Privacy Policy.

1. Restrictions on Use.

The SW Web Sites are offered to you conditioned upon your acceptance without modification of the terms, conditions, and notices contained herein (the "Website Terms"). Your use of the SW Web Sites constitutes your acknowledgment and Website Terms to all such terms, conditions and notices, as set forth below and in all links to this Website Terms. If you do not agree to accept these Website Terms, you may not access or use the SW Web Sites.

2. Modification of These Website Terms.

SW may revise these Website Terms and SW’s Privacy Policy at any time and without notice to you. You are responsible for regularly reviewing these Website Terms and SW’s Privacy Policy. The revised Terms of Use and SW’s Privacy Policy will be effective when posted. Your continued use of the SW Web Sites indicates your acceptance to any revised Website Terms and SW’s Privacy Policy.

3. Personal and Non-commercial Use Limitation.

Unless otherwise specified, the SW Web Sites are exclusively for: business use as it relates to your relationship to SW, and your personal and other non-commercial use. Unless expressly permitted by SW, you may not modify copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information, software, solutions/products or services obtained from the SW Web Sites. Subject to any applicable terms in addition to these Website Terms (including without limitation the SW Software Terms), you may download information, software, solutions/products or services obtained from the SW Web Sites only for business use as it related to your relationship with SW, your personal and other non-commercial use, provided you keep intact all copyright and other proprietary notices.

You should consult your own advisers as to legal, business, tax, and other related matters concerning any business decision. Any projections, estimates, forecasts, targets, prospects and/or opinions expressed on the SW Web Sites or any other SW content are subject to change without notice and may differ or be contrary to opinions expressed by others. For clarity, you are not authorized to resell, distribute, redistribute or grant access to the SW Web Sites or information to third parties, or use the SW Web Sites or information to provide transportation or logistics services to a third party.

4. Links to Third Party Sites/Business Relationships.

SW makes no representations whatsoever about any other web site which you may access through the SW Web Sites. When you access a non-SW Web Site, even one that may contain the SW-logo or other SW trademark, service mark or trade name, please understand that it is independent from SW, and that SW has no control over the content on that web site. Additionally, the SW Web Sites may contain links to other web sites ("Linked Sites"). The Linked Sites may not be under the control of SW and SW is not responsible for the contents of any Linked Site not under SW control, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. SW is not responsible for any form of transmission received from any Linked Site. SW makes no warranties or representations of any kind as to the accuracy, currency, or completeness of any information contained in such Linked Sites and shall have no liability for any damages or injuries of any kind arising from such content or information. SW is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by SW of the site or any association with its operators. It is up to you to take precautions to ensure that whatever you select for your use is free of such items as viruses, worms, trojan horses and other items of a destructive nature. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL SW, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY OTHER DAMAGES WHATSOEVER FOR ANY USE OF THE LINKED SITES INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM OR OTHERWISE, EVEN IF EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5. No Unlawful or Prohibited Use.

As a condition of your use of the SW Web Sites, you warrant to SW that you will not use the SW Web Sites for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the SW Web Sites in any manner which could damage, disable, overburden, or impair the SW Web Sites or interfere with any other party's use of the SW Web Sites. You may not obtain or attempt to obtain any materials or information through any means not made available or provided to you through the SW Web Sites.

6. Use of Communication Services.

The SW Web Sites may contain bulletin board services, chat areas, blogs, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable you to communicate with and share information with the public at large or with a group (collectively, "Communication Services"). You agree to use the Communication Services only to post, send and receive messages and material that are proper and related to the particular Communication Service. Without prejudice to the generality of the foregoing, you agree that when using a Communication Service, you will not:

Defame, abuse, harass, stalk, threaten, damage the reputation of or otherwise infringe or violate the legal rights (such as rights of privacy and publicity) of others; breach any legal duty owed to others nor advocate, promote or incite any third party to commit or assist any unlawful or criminal act.
Publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, offensive, discriminatory, indecent, illegal or unlawful topic, name, material or information.
Intentionally post inaccurate, false or misleading information or information containing your personal opinions not genuinely held by you.
Upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents.
Publish, post, upload or distribute another's confidential, proprietary, sensitive or personal information or any information relating (directly or indirectly) to any past or existing commercial arrangements, contracts, engagements or provision of goods and services between any persons or organizations.
Upload files that contain viruses, worms, corrupted files, or any other similar software, programs or malicious content that may damage the operation of systems hosting SW Web Sites or another's computer.
Advertise or offer to sell or buy or make available any goods or services for any business purpose, unless such Communication Service specifically allows such messages in which case you shall not advertise or offer to sell or buy or make available any unlawful goods or services.
Conduct or forward surveys (unrelated to SW business), contests, pyramid schemes or chain letters.
Download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner.
Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded.
Restrict or inhibit any other user from using and enjoying the Communication Services.
Violate any code of conduct or other guidelines which may be applicable for any particular Communication Service.
Harvest or otherwise collect information about others, including e-mail addresses, without their and SW’s consent.
Violate any applicable laws or regulations.

Your participation in the Communication Services, including any personal web page or group identified as “private” or “secret,” may be reviewed, edited, censored, removed or otherwise controlled by SW, although SW is under no legal obligation to you or any other person to do so, and shall not be responsible as author, editor or publisher (either directly or indirectly) for any information, ideas, data, materials or other content made available by you using the Communication Services. SW reserves the right to restrict and/or terminate your access to any or all of the Communication Services at any time without notice for any reason whatsoever. SW has no obligation to monitor the Communication Services.

SW reserves complete and sole discretion with respect to the operation of the SW Web Sites. SW reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request. Always limit and use extreme caution when posting personally identifying information to the Communications Services. SW does not control or endorse the content, messages or information found in any Communication Service. To the extent permissible under applicable law, SW specifically disclaims any liability resulting from your participation in any Communication Service.

Materials uploaded to a Communication Service may be subject to posted limitations on usage, reproduction and/or dissemination, you are responsible for adhering to such limitations if you download the materials.

7. SW's Unsolicited Idea Submission Policy.

SW and its employees do not accept nor consider unsolicited ideas, including ideas for new advertising campaigns, new promotions, new or improved solutions, products or technologies, solution or product enhancements, processes, marketing plans or new solution or product names. Please do not submit any unsolicited ideas, samples, demos or other works. The sole purpose of these Website Terms is to avoid potential misunderstandings or disputes when SW’s software, solutions, products and/or services, or marketing strategies, might seem similar to ideas submitted to SW. If, despite our request that you not send us your ideas, you still submit them, then regardless of what message accompanies the submission, the following terms shall apply to your submissions.

You agree that: (1) your submissions and their contents will automatically become both the legal and equitable property of SW, without any compensation to you; (2) SW may use or redistribute the submissions and their contents for any purpose and in any way without limitation; (3) there is no obligation for SW to review the submission; (4) there is no obligation to keep any submissions confidential; and (5) you hereby agree to waive absolutely any and all moral rights arising from your submissions and their contents so far as is lawfully possible and any broadly equivalent rights you may have in respect of your submissions and their contents in any territory of the world.

8. Materials Provided to SW or Posted on SW Web Sites; Data Collection.

Except for where specifically covered by the SW’s Privacy Policy, SW does not want to receive confidential or proprietary information of any person or organization from you through its SW Web Sites and you agree not to supply the same. Please note that any information or material sent to SW that is not covered by the SW’s Privacy Policy, whether by post, upload, input or submission to the SW Web sites or their associated services (collectively, "Materials"), will be deemed NOT to be confidential and SW shall have no obligation of any kind with respect to such Materials or any underlying information.

Subject to the limitations of the SW’s Privacy Policy, by posting, uploading, inputting, providing or submitting your Materials you agree to grant all Users a royalty free, irrevocable, perpetual, non-exclusive, unrestricted, worldwide license to use your submission (Materials) in connection with the operation of their businesses including, without limitation, the rights to: copy, modify, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate and reformat your submission (Materials) (which includes the right to incorporate any portion thereof into any software, products or services offered to the public by SW); any Materials used in this way must be attributed in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of their work), and you hereby agree to waive absolutely any and all moral rights arising from the (Materials) so far as is lawfully possible and any broadly equivalent rights you may have in respect of the (Materials) in any territory of the world.

No compensation will be paid with respect to the use of any Materials. SW is under no obligation to post or use any Materials you may provide and may remove any Materials at any time in SW's sole discretion.

By posting, uploading, inputting, providing or submitting your Materials you warrant and represent that you own or otherwise control all of the rights to your Materials as described in this section including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Materials.

When accessing secure areas on the SW Web Sites requiring authentication, you are responsible for compliance with any applicable additional terms and conditions between SW and you or your employer, client or other associate (including without limitation, the SW Software Terms, and the Master Warehousing Agreement or similar master services agreement) to the extent any such terms apply to you.

SW reserves the right to collect (via cookies or otherwise), use, and freely utilize data with respect to the provision and usage of the SW Web Sites (collectively, the “Usage Data”), and to prepare reports, studies, analyses, and other work product resulting from such compilation and analysis on an anonymous basis that does not identify you, your company, or any person. SW shall have exclusive ownership rights to, and the exclusive right to use such Usage Data for any lawful purpose.

9. Software Available on the SW Web Sites.

Any software that is made available to access or download from the SW Web Sites (excluding any links to third party software that may be made available through the SW Web Sites), is the copyrighted work of SW (“Software”). Your use of the Software is governed by the terms of the SW Software Terms ("Software Terms"). You may not install, access or use any Software unless you first agree to the Software Terms.

10. Liability Disclaimer.

THE INFORMATION, SOFTWARE, SOLUTIONS, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SW WEB SITES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. SW AND/OR ITS RESPECTIVE SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SW WEB SITES AT ANY TIME. ADVICE RECEIVED VIA THE SW WEB SITES SHOULD NOT BE RELIED UPON FOR PERSONAL, LEGAL, TECHNICAL OR FINANCIAL DECISIONS.

SW AND ITS RESPECTIVE SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SW WEB SITES FOR ANY PURPOSE. ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. SW AND/OR ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, SOLUTIONS, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SW, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY OTHER DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SW WEB SITES, WITH THE DELAY OR INABILITY TO USE THE SW WEB SITES OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SW WEB SITES, OR OTHERWISE ARISING OUT OF THE USE OF THE SW WEB SITES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SW OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SW WEB SITES, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SW WEB SITES.

NOTWITHSTANDING THE FOREGOING PARAGRAPH, THE TOTAL LIABILITY OF SW, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS AND SUPPLIERS, IF ANY, FOR LOSSES OR DAMAGES SHALL NOT EXCEED $100.

11. Trademark Notices.

Any and all intellectual property rights including copyrights, patents, trademarks, service marks, and/or trade secrets (collectively, “IP Rights”) associated with the SW Web Site and its contents (the “Content”) are the sole property of SW. The Content is protected by trademark and other laws in the United States. Except as expressly provided herein, SW does not grant to you any express or implied rights to SW’s or any third party’s IP Rights.

Smart Warehousing and SWIMS are registered trademarks of SW and/or its affiliates. Other names appearing on the SW Web Sites may be trademarks of their respective owners.

Unauthorized copying, distribution, modification, public display, or public performance of trademarks may be an infringement of the rights of the trademark owner. You agree that you will not use the SW Web Sites to infringe SW's IP Rights or the IP Rights of others. You may not remove, deface, or overprint any notice of copyright, trademark, logo, or other notice of ownership from any originals or copies of SW’s software, third party software, or any products or content you access on or through the SW Web Sites.

12. User Representations.

You represent and warrant that you are at least 18 years of age and that you possess the legal right and ability to enter into these Website Terms and to use the SW Web Sites in accordance with these Website Terms. You agree to be financially responsible for your use of the SW Web Sites and to comply with your responsibilities and obligations as stated in these Website Terms. You agree to not input or upload to the SW Web Sites any virus, Trojan horse, worm, time bomb or other programs (i) that are intended to harm, interfere with, intercept or expropriate the SW Web Sites; or (ii) that infringe the IP Rights of SW or another party.

13. Indemnification.

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS SW, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS AND SUPPLIERS FROM AND AGAINST ALL CLAIMS, LIABILITIES, LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, RESULTING FROM ANY VIOLATION OF THESE WEBSITE TERMS OR ANY ACTIVITY RELATED TO YOUR USE OF THE SW WEB SITES AND ANY ACCOUNT YOU MIGHT HAVE (INCLUDING INFRINGEMENT OF THIRD PARTIES’ WORLDWIDE INTELLECTUAL PROPERTY RIGHTS, MISAPPROPRIATION OF TRADE SECRETS OR OTHER PROPRIETARY RIGHTS OR NEGLIGENT OR WRONGFUL CONDUCT).

14. Waiver, Release and Limitation of Liability.

YOU HEREBY RELEASE AND FOREVER WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST SW, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS OR SUPPLIERS FOR LOSSES OR DAMAGES YOU SUSTAIN IN CONNECTION WITH YOUR USE OF THE SW WEB SITES. THIS SECTION 14 WILL NOT APPLY TO CLAIMS ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY SW OR ANY OTHER CLAIMS IN RESPECT OF LIABLITY THAT CANNOT BE LAWFULLY EXCLUDED OR LIMITED.

15. Term & Termination.

Either you or SW may terminate your right to use the SW Web Sites at any time, with or without cause, upon notice. In addition, SW may withdraw, suspend or discontinue any functionality or feature of the SW Web Sites. The provisions concerning Trademarks, Indemnification, Waiver, Release and Limitation of Liability, and General shall survive any termination of these Website Terms.

16. Copyrights and Copyright Agent.

If you believe your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have otherwise been violated, please provide a notice containing all of the following information to our Copyright Agent:

(a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(b) A description of the copyrighted work that you claim has been infringed;
(c) A description of where the material that you claim is infringing is located on the SW Web Site;
(d) Your address, telephone number, and e-mail address;
(e) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
(f) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

Our Copyright Agent for Notice of claims of copyright infringement on the SW Web Site is SW’s General Counsel, who can be reached as follows:

By Mail: 7309 W. 80th, Suite 200, Overland Park, KS 66204
By Phone: (913) 888-3222
By E-mail: legal@smartwarehousing.com

17. Notice.

SW may deliver notice to you under these Website Terms by means of electronic mail, a general notice on the SW Web Sites, or by written communication delivered by first class U. S. mail to your address on record in SW’s account information. You may give notice to SW at any time via electronic mail to legal@smartwarehousing.com or by letter delivered by first class postage prepaid U. S. mail or overnight courier to the following address:

Smart Warehousing, LLC
7309 W. 80th, Suite 200
Overland Park, KS 66204
Attn: General Counsel

18. Legal.

Information on the SW Web Sites may be changed or updated without notice. SW may also make improvements and/or changes in the solutions and/or the services described on the SW Web Sites at any time without notice.

19. Availability.

The SW Web Sites are scheduled to be available twenty-four (24) hours a day, seven (7) days a week (other than when unavailable for scheduled maintenance); provided that, SW does not guarantee the availability of the SW Web Sites, or that access will be uninterrupted or error-free. SW reserves the right to interrupt, limit, or suspend the SW Web Sites from time to time for purposes of scheduled or emergency maintenance, upgrades, or any other reason that SW determines in its sole and absolute discretion. You agree that SW shall not be held responsible or liable for any damages arising from any interruption or unavailability of the SW Web Sites, regardless of the cause.

SW makes no representations that the information on the SW Web Sites is appropriate or available for use in other locations, and access to them from territories where their content is illegal or prohibited. Those who choose to access the SW Web Sites from other locations do so on their own initiative and are responsible for compliance with applicable local laws.

Information SW publishes on the World Wide Web may contain references or cross references to SW software, programs and services that are not announced or available in your country. Such references do not imply that SW intends to announce such software, programs or services in your country.

20. General.

These Website Terms are governed by US federal law or the laws of the State of Kansas. You hereby consent to the exclusive jurisdiction and venue of courts in Johnson County, Kansas, U.S.A. in all disputes arising out of or relating to the use of the SW Web Sites. Use of the SW Web Sites is unauthorized in any jurisdiction that does not give effect to all provisions of these Website Terms, including without limitation this paragraph. Any cause of action or claim you may have with respect to SW must be commenced within one (1) year after the claim or cause of action arises. SW’s failure to insist upon or enforce strict performance of any provision of these Website Terms shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of these Website Terms. SW may assign its rights and duties under these Website Terms to any party at any time without notice to you.

You agree that no joint venture, partnership, employment or agency relationship exists between you and SW as a result of these Website Terms or use of the SW Web Sites. SW's performance of these Website Terms is subject to existing laws and legal process, and nothing contained in these Website Terms is in derogation of SW's right to comply with governmental, court and law enforcement requests or requirements relating to your use of the SW Web Sites or information provided to or gathered by SW with respect to such use.

If any part of these Website Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Website Terms shall continue in effect.