Master Service Agreement
This Master Services Agreement (“MSA”) constitutes a binding contract on Client and governs the use of and access to the Services by Client, Agents, and End-Users, whether in connection with a paid or free trial subscription to the Services.
By accepting this MSA, by:
(1) Clicking a box indicating acceptance,
(2) Executing an Order Form that references this MSA, or
(3) Using free Services,
Client agrees to the terms of this MSA.
If the individual accepting this MSA is doing so on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions. In that case, the term “Client” shall refer to such entity and its affiliates. If the individual does not have such authority, or does not agree with these terms, they must not accept this MSA and may not use the Services.
The purpose of this MSA is to establish the terms and conditions under which Client may purchase SmarterServices’s Services as described in an Order Form or Statement of Work.
In the event of any inconsistency between this MSA and an Order Form or Statement of Work, the latter shall control. Non-English translations are provided for convenience only. The English version shall control in case of ambiguity.
1. Term and Termination
This MSA remains in effect from the Effective Date for as long as any Order Forms are active unless otherwise terminated in accordance with this MSA (“Term”). If either Party breaches a material obligation and does not cure it within 30 days (10 days for non-payment), the non-breaching Party may terminate this MSA. SmarterServices may also terminate immediately if there is unauthorized or unlawful use. Upon termination, Client must cease all use of the Product.
2. Payment
Client shall pay for Services according to the schedule in each Order Form. Invoices are due within 30 days. SmarterServices may suspend access or terminate licenses if Client’s account is more than 10 days overdue. SmarterServices may apply credits due to Client toward any outstanding balances.
3. License and Restrictions
SmarterServices grants Client a limited, non-exclusive, non-transferable license during the Term for internal business or academic use only.
Client may not modify, sublicense, reverse engineer, replicate, or use the Product for commercial purposes outside what is defined. Individuals no longer affiliated with Client may not continue use. Any unauthorized use, or third-party report production based on the Product, is prohibited without written consent. The Client institution must protect the Product from unauthorized access and notify SmarterServices of any breach.
4. Intellectual Property
SmarterServices retains all ownership rights to the Product and related intellectual property, including software, tools, scoring methods, and reports. Client and its users may not reverse engineer, create derivative works, sell, transfer, or integrate the Product with other systems. This MSA does not constitute a sale of the Product or any copy.
5. Confidentiality
Each Party shall protect the other’s Confidential Information and use it only as permitted by this MSA. “Confidential Information” includes but is not limited to intellectual property, pricing, and student information. It does not include information that is public, previously known, or rightfully obtained from third parties. If disclosure is required by law, prior notice shall be provided if permitted. Breach of this section entitles the harmed party to legal and equitable remedies.
6. Security
SmarterServices will maintain commercially reasonable security standards to protect data and Services.
SmarterServices avoids collecting sensitive identifiers like Social Security Numbers and requires Clients not to input such data. Clients are responsible for compliance and may be liable for violations.
7. Temporary Suspension
SmarterServices may suspend Client access if it suspects violations or detects malicious activity. Where permitted by law, notice will be given via email. SmarterServices is not liable for suspension or discontinuation and may report suspicious activity to authorities.
8. Limited Warranty and Disclaimer
SmarterServices warrants that it has the right to license the Product.
Except as expressly stated, all other warranties are disclaimed, including implied warranties of merchantability, fitness for a particular purpose, or error-free operation.
9. Indemnification
(a) SmarterServices shall indemnify Client against third-party IP claims, except when infringement arises from combinations with Client systems, misuse, or Client’s failure to apply updates.
If a claim arises, SmarterServices may provide a workaround, replacement, or refund. This is Client’s exclusive remedy.
(b) Client shall indemnify SmarterServices for third-party claims involving Client data, breach of the MSA, or legal violations.
(c) Each Party seeking indemnification must provide prompt notice, allow control of the defense, and cooperate reasonably.
10. Limitation of Liability
Neither Party shall be liable for indirect, consequential, or special damages. Maximum liability is capped at the fees paid under the applicable Order Form in the 12 months preceding the incident.
11. Miscellaneous
(a) Independent Contractor. SmarterServices acts as an independent contractor and not as an employee, agent, or partner.
(b) Access. Client is responsible for systems required to use the Product.
(c) Whitelisting. Client must ensure SmarterServices emails are not blocked.
(d) Data. Upon termination, Client may request data export within 30 days. If terminated for non-payment, this may not be free. SmarterServices retains the right to use stored data for aggregate analysis.
(e) Assignment. Client may not transfer this MSA without written consent. Unauthorized assignments are void.
(f) Severability. Invalid provisions shall be modified or removed without affecting the remainder of the MSA.
(g) Vendor Relationships. Vendors are not third-party beneficiaries of this MSA.
(h) Entire Agreement. This MSA and all Order Forms represent the full agreement and supersede prior agreements.
(i) Amendment. SmarterServices may amend the MSA with 10 days’ notice. Continued use constitutes acceptance.
(j) GDPR Compliance. SmarterServices complies with GDPR. Clients must review and agree to its GDPR Data Protection Policy. SmarterServices may refuse services to students located in the EU if terms are not accepted.
(k) Expedited Programming. Improvements may be included in future updates at no charge. Immediate changes may be billed at $150/hour upon written agreement. All work remains the intellectual property of SmarterServices.
(l) Notice. Notices must be sent in writing to:
SmarterServices
1 Allegheny Square, Suite 500
Pittsburgh, PA 15212
Attention: Jason Fill
Email: jason@smarterservices.com
Fax: 646-365-5390
SmarterServices may notify Client via mail or email using contact information from the Order Form.
12. Survival
Sections 4 through 6 and 8 through 11 shall survive termination. Termination does not release either Party from liabilities accrued prior to termination.
