Terms of Service

Important: By using, downloading or installing any element of the Product (as defined below), you indicate that you have read, understood, and agree to be bound by these SmartPath Terms of Service (“Terms”). These Terms govern your use of the Product and form a legal contract between Smartpath PTY LTD (from here on in referred to as “SmartPath”, “we” or “us”) and you (“Customer” or “you”). If you are an individual accepting these Terms on behalf of a company or entity, then you are binding the company or entity to these Terms and represent and warrant that you have full power and authority to do so. SmartPath may modify these Terms from time to time as described in Section 14 (Modifications to Terms) below.

Please read these terms carefully to ensure that you understand each provision. These terms contain a mandatory individual arbitration and class action/jury trial waiver provision that requires the use of arbitration on an individual basis to resolve disputes, rather than jury trials or class actions.

Contents

  1. Introduction
  2. Your Account
  3. The Product
  4. Usage Plans, Fees and Beta Releases
  5. Support and Updates
  6. Customer Data
  7. SmartPath Payments
  8. Ownership
  9. Termination and Suspension
  10. Disclaimer of Warranties
  11. Limitation of Liabilities
  12. Consumer Law
  13. Confidential Information
  14. Modifications to Terms
  15. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
  16. General
  17. Apple-Related Terms

1. Introduction

Thank you for using the SmartPath Product! The “Product” means (a) our suite of services and features related to business management, including creation of invoices and related reports, (b) our related mobile applications and software (“Software”), (c) any Updates (defined below) and (d) SmartPath’s standard user documentation.

2. Your Account

You must be at least 18 years of age to use the Product. Use of the Product may require you to create an account and register your email address and a password. You are solely responsible for any and all actions taken using your account and you must keep your passwords secure.

3. The Product

  1. Use of the Product. Subject to these Terms, including Section 4 (Usage Plans, Fees and Beta Releases) below, you may access and use the Product for your internal business purposes and in accordance with our standard user documentation. This includes the right to download and use the Software on compatible devices that you own or control. You may permit your employees and agents to use the Product on your behalf, but you must remain responsible for their acts, omissions and compliance with these Terms.
  2. Restrictions. Your rights to use the Product are non-exclusive, non-transferable and non-sublicensable. You will not (or permit anyone else to): (i) rent, lease, reproduce, modify, create derivative works of, distribute or transfer the Product; (ii) use the Product for the benefit of any third party or incorporate the Product into any other product or service; (iii) circumvent mechanisms in the Product intended to limit your use; (iv) reverse engineer, disassemble, decompile, or translate the Product or attempt to derive the source code of the Software or any non-public APIs; (v) publicly disseminate information regarding the performance of the Product; (vi) access the Product to build a competitive product or service; (vii) submit any viruses, worms or other harmful code to the Product or otherwise interfere with or cause harm to the Product; (viii) seek to access information or data of other SmartPath customers; (ix) use the Product to transmit spam or other unsolicited email; or (x) use the Product except as expressly permitted herein.
  • (A) Fair Play Policy. SmartPath enforces a fair play policy for outbound communications, including but not limited to SMS, Email and push. These fair play limits are designed to prevent misuse of the platform and included functionality. The fair play limits have been designed to be generous and far exceed historical and projected future utilization.

4. Usage Plans, Fees and Beta Releases

  1. Usage Plans. SmartPath offers various usage plans for the Product, including:
  • Free trials, which offer limited functionality and will expire if not converted to a paid plan (“Trial Plans”);
  • Paid subscriptions, which allow you to create an unlimited number of assets, jobs and invoices during a specific subscription period (“Paid Plans”). Current plans are described at http://SmartPath.com.au/pricing/ and your specific plan will be identified in the terms presented when you register, order or pay for the Product (“Order Terms”). These Terms incorporate the Order Terms and any referenced URLs and SmartPath policies. Depending on how you use the Product, the Order Terms may be presented by SmartPath (e.g., through our website), by a third-party application store or marketplace (“App Marketplace”) or through the Product itself. Paid Subscriptions are for limited subscription terms and, if not renewed, the Product will revert to limited (or no) functionality once a subscription term expires. If you have a Trial Plan, you may use the Product solely to determine whether to purchase a paid plan.
  1. Fees. For Paid Subscriptions, you must pay all fees and taxes to SmartPath or the authorised third party (e.g., App Marketplace) through which you made your purchase, as specified in the Order Terms. Renewals are governed by our Billing Policy. All fees are non-refundable except as expressly specified in Section 9.2 (Termination or Suspension by SmartPath), Section 14 (Modifications to Terms), Section 17 (Apple-Related Terms), the Order Terms or our Billing Policy.
  2. Beta Releases. As part of SmartPath’s effort to extend the functionality of the Product, certain features of the Product may be made available to customers on a “beta” basis (“Beta Releases”). If Customer chooses to use a Beta Release, Customer acknowledges that the Beta Release may not be complete or fully functional and may contain bugs, errors, omissions and other problems. SmartPath does not guarantee that future versions of a Beta Release will be made available under these Terms or otherwise.
  3. SmartPath Payments. If you use SmartPath Payments, the additional terms in Section 7 apply.


5. Support and Updates.

SmartPath uses reasonable efforts to provide email, live chat and online self-help. All support is governed by SmartPath’s then-current support policies. We may provide updates or upgrades to the Product (“Updates”). All Updates are governed by these Terms unless we specify otherwise. In certain cases, we may require you to download Updates to continue to use the Product. Updates and other Product changes are made in our discretion; we have no liability to you for any such changes and do not guarantee that any changes will meet your needs.

6. Customer Data

  1. Your Rights. As between SmartPath and Customer, Customer retains all of its rights to any business information or other data that Customer submits to the Product (“Customer Data”).
  2. Use of Customer Data. Customer grants SmartPath a worldwide, non-exclusive, royalty-free right to use, copy, store, transmit, distribute, publicly perform and display, create derivative works of and modify any Customer Data in order to provide the Product to Customer and otherwise to operate, improve and maintain the Product. This includes SmartPath’s distribution of invoices containing Customer Data to the recipients designated by Customer through the Product. SmartPath may use the services of subcontractors to provide the Product and permit them to exercise our rights to Customer Data.
  3. Storage of Customer Data. SmartPath does not provide an archiving service. SmartPath agrees only that it will not intentionally delete Customer Data prior to termination or expiration of your Paid Subscription. We expressly disclaim all other storage obligations to the extent permitted by applicable law. You are solely responsible for maintaining backups of Customer Data on your own systems.
  4. Customer Obligations.
    (A) In general.     Customer represents, warrants and agrees that: (i) Customer’s use of the Product will comply with all applicable local, state, federal and international laws and regulations, including those relating to privacy, data security, export control and electronic commutations (“Laws”); (ii) Customer has obtained all necessary rights, releases and permissions to provide and allow the processing, use and disclosure of Customer Data by SmartPath under these Terms; (iii) neither the Customer Data nor its processing, use or disclosure will violate any Laws, third party rights (including intellectual property rights, rights of privacy or rights of publicity) or any applicable Customer privacy policy; and(iv) Customer will not use the Product in support of, or to further, any activities prohibited by any Laws (e.g., money laundering) or, even if not prohibited by law, for gambling, prostitution, alcohol, drug, pharmaceutical or healthcare businesses or services.
    (B) Certain Customer Data Prohibited. Except in the specific fields designated by SmartPath, Customer agrees not to submit to the Product any tax identification numbers, bank account numbers or credit or debit card numbers. In addition, Customer agrees not to include in any attachments or documents or otherwise submit to the Product any of the following: (i) patient, medical or other protected health information regulated by any applicable laws, rules or regulations, including HIPAA (including without limitation any health insurance information); (ii) social security numbers or similar; or (iii) driver’s license numbers or California identification card numbers.
    (C) Attorney Use. While attorneys are welcome to use the Product, they should not submit anything that constitutes or could reasonably be considered “confidential” or “attorney-client privileged” information. SmartPath takes no responsibility and assumes no liability for any Customer Data, and Customer is solely responsible for Customer Data and the consequences of its use.
    (D) Responsibility for Customer Data. SmartPath takes no responsibility and assumes no liability for any Customer Data, and Customer is solely responsible for Customer Data and the consequences of its use.
  5. Customer Indemnity. Customer will indemnify defend (at SmartPath’s request) and hold harmless SmartPath (and its affiliates and their respective employees, agents, officers, directors and customers) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees) arising out of or in connection with (i) any Customer Data, (ii) Customer’s negligence, misconduct or breach or alleged breach of these Terms, (iii) Customer’s relationships or disputes with any of its own customers or business partners, including any invoice recipients, and (iv) any service, product or offering of Customer used in connection with the Product.
  6. Third Party Products. If you use the Product with (or to send Customer Data to) any third-party products or services (as permitted through the standard functionality of the Product), then you (not SmartPath) shall be fully responsible for and assume all risk arising from your use of such third party products or services and from the use of Customer Data by such third parties. SmartPath is not responsible for how third parties use Customer Data once it has left our systems.
  7. Aggregate/Anonymous Data. In addition to its other rights above, SmartPath may aggregate Customer Data with other data so that the results are non-personally identifiable to Customer and may collect anonymous technical and other data about Customer’s use of the Product (“Aggregated/Anonymous Data”). SmartPath owns all Aggregate/Anonymous Data and may use Aggregate/Anonymous Data for its marketing, reporting and other lawful business purposes.
  8. Compelled Disclosures. SmartPath may share Customer Data when we have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to: (i) satisfy any applicable law, legal process or governmental request; (ii) enforce these Terms, including investigation of potential violations hereof; or (iii) protect against imminent harm to the Product or the rights, property or safety of SmartPath, its users or the public as required or permitted by applicable law.
  9. Other Data Collection and Handling. SmartPath uses your account information (as described in Section 2) and certain other information about your use of the Product in accordance with our Privacy Policy.

7. SmartPath Payments

  1. General. The Product may include features to allow you to receive payments from your own customers (“End Customers”) for invoices you generate through the Product (“SmartPath Payments”). These payments are processed through our payments partner (currently Stripe) (“Payments Partner”), and if you use SmartPath Payments, you must provide certain underwriting and other information requested by the Payments Partner. Your relationship with the Payments Partner (including their use of your information and any fees you owe) are governed by the Payments Partner’s Terms of Service or other terms presented through the Product. If you agree to directly provide SmartPath with the same or similar information, we will handle the information as Customer Data under these Terms and our Privacy Policy.
  2. Your Responsibilities. Any purchase or payment is solely between you and the End Customer; SmartPath is not party to your transactions and assumes no liability or responsibility for your products, services or offerings. SmartPath is not your bank, agent, or trustee or otherwise involved in the flow of funds or payments. Any payment dispute must be resolved between you and the End Customer. Without limiting Section 10 (Disclaimer of warranties) or Section 11 (Limitation of liability) below, SmartPath makes no warranty and assumes no responsibility or liability for SmartPath payments or any disputes, charge backs, overcharges, delayed payments, insufficient funds, expired cards, circumstances beyond our control (including without limitation power outages, service interruptions or otherwise) or other issues relating to transactions made through SmartPath payments to the maximum extent permitted by applicable law. Notwithstanding anything in these Terms to the contrary, SmartPath may modify, suspend or terminate SmartPath Payments at any time, without notice or liability to you.

8. Ownership

SmartPath and its licensors retain all right, title and interest (including all intellectual property rights) in and to the Product and any and all related and underlying technology and documentation. Customer is obtaining only a limited usage right to the Product, regardless of use of words like “purchase”, “sale” or similar terms. If Customer submits any comments, suggestions or other feedback regarding the Product, SmartPath may freely exploit the feedback (including as part of the Product) without restriction on account of intellectual property rights or otherwise.


9. Termination and Suspension

These Terms will continue until terminated.

  1. Termination by Customer. You may terminate these Terms at any time by ceasing all use of the Product and deleting any Software.
  2. Termination or Suspension by SmartPath. For Paid Subscriptions, SmartPath may terminate or suspend these Terms if Customer fails to cure any material breach within fifteen (15) days after written notice, except that SmartPath may terminate or suspend these Terms immediately as a result of Customer’s breach of the express obligations under Sections 3.2 (Restrictions)or 6.4 (Customer Obligations) or to prevent harm to the Product or other customers. For Trial Plans and Beta Releases, SmartPath may terminate or suspend these Terms at any time for any or no reason. Further, if SmartPath ceases to offer the Product, or if SmartPath’s right or ability to offer the Product is restricted, suspended or terminated (whether pursuant to Laws or by App Marketplaces or other third parties), SmartPath may immediately terminate or suspend these Terms. In such case, if you have a Paid Subscription, you will receive a pro-rated refund based on the unused portion of your subscription term.
  3. Effect of Termination. Upon termination of these Terms, your right to the Product will automatically terminate and you must cease using the Product and delete any Software. Following termination, you will have no further access to any Customer Data in the Product and SmartPath may delete all Customer Data in its possession at any time unless prohibited by applicable law. You will delete all Confidential Information (or return it to SmartPath) upon any termination of these Terms or request by SmartPath. The following will survive termination: Section 3.2 (Restrictions), Sections 6.4 (Customer Obligations)through 6.9 (Other Data Collection and Handling), Section 7.2 (Your Responsibilities), and Sections 8 (Ownership) through 17 (Apple-Related Terms).

10. Disclaimer of Warranties

To the maximum extent permitted by law, the product is provided “as is” and SmartPath and its licensors expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality or merchantability, whether express, implied or statutory.

The product is not intended to provide professional accounting or other advice. To the maximum extent permitted by applicable law SmartPath expressly disclaims any warranty that use of the product will ensure your compliance with any accounting standards or legal or regulatory obligations or that the results of the product will be accurate or sufficient for your purposes. To the maximum extent permitted by applicable law there is no warranty that the product will be error free, that access will be continuous or uninterrupted, that any information provided or used with the product will be secure, accurate, complete or timely, or that any customer data will be preserved or maintained without loss. To the maximum extent permitted by applicable law SmartPath shall not be liable for any product failures or other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of SmartPath. You may have other statutory rights; however, the duration of statutorily required warranties, if any, will be limited to the maximum extent permitted by law.

11. Limitation of Liabilities

To the maximum extent permitted by law, in no event will SmartPath or its licensors be liable to you or to any third party (i) for any lost profits, loss of use, lost data, interruption of business, failure of security mechanisms or any special, indirect, incidental, punitive or consequential damages of any kind, even if advised of the possibility of such loss or damages or (ii) in any event, for amounts exceeding the greater of (a) the amount paid or payable by customer to SmartPath in the prior six (6) month period or (b) one hundred dollars (us$100). This section will survive and apply even if any limited remedy in these terms is found to have failed of its essential purpose. Customer acknowledges that the foregoing limitations are an essential element of these Terms and a reasonable allocation of risk between the parties, and that in the absence of such limitations the pricing and other provisions in these Terms would be substantially different.

The Product is controlled and operated from facilities in the United States but may involve transmission of data or utilisation of third-party services globally. SmartPath makes no representations that the Product is appropriate or available for use in other locations. Those who access or use the Product from other jurisdictions do so at their own volition and are entirely responsible for compliance with all Laws. Unless otherwise explicitly stated, all materials found on the Product are solely directed to users located in the United States.

12. Consumer Law

Notwithstanding any other provision of these Terms, If Customer is a Consumer (as defined in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the Australian Consumer Law (Victoria) (“Australian Consumer Law”)):

  1. a)Sections 10 (Disclaimer of Warranties)and 11 (Limitation of Liabilities) do not apply to any liability of SmartPath to comply with an applicable consumer guarantee under the Australian Consumer Law;
  2. b)Subject to Section 12.3 below, the liability of SmartPath for any liability, loss, cost or damage, however caused (including by the negligence of SmartPath), suffered or incurred by Customer because of a failure to comply with a consumer guarantee is limited to SmartPath (at its election):
    (i) resupplying the services; or
    (ii) paying the cost of having the services supplied again; and

c) Section 12.2 above does not apply if it is not fair or reasonable for SmartPath to rely on it for the purposes of section 64A of the Australian Consumer Law.

13. Confidential Information

In connection with access to the Product, Customer may receive access to confidential or proprietary information of SmartPath (“Confidential Information”). Confidential Information includes the Software, all non-public elements of the Product and any performance information regarding the Product. Confidential Information excludes information that Customer already lawfully knew or that becomes public through no fault of Customer. Customer will (a) use a reasonable degree of care to protect all Confidential Information, (b) not use Confidential Information except in support of its authorised use of the Product and (c) not disclose Confidential Information except to employees and agents with a legitimate need to know and who have agreed in writing to keep it confidential. Customer may also disclose Confidential Information to the extent required by law after reasonable notice to SmartPath and cooperation to obtain confidential treatment. Unauthorised disclosure of Confidential Information may cause harm not compensable by damages, and SmartPath may seek injunctive or equitable relief in a court of competent jurisdiction, without posting a bond, to protect its Confidential Information.

14. Modifications to Terms

SmartPath may modify these Terms (including Product pricing and plans) from time to time, with notice given to you by email or through the Product. If you have a Trial Plan or are using Beta Releases, then any modifications will become effective immediately, and if you disagree with the modifications, your exclusive remedy is to terminate these Terms. If you have a Paid Subscription, you must notify SmartPath within fifteen (15) days of notice of the modifications that you do not agree to such changes, and SmartPath (at its option and as your exclusive remedy) may either: (a) permit you to continue under the prior version of these Terms until your next subscription expiration or renewal date (after which the modified Terms will apply) or (b) allow you to terminate these Terms and receive a pro-rated refund based on the unused portion of your subscription term or the number of unused invoices remaining in your paid term. Upon any changes to these Terms, you may be required to click to agree to the modified Terms in order to continue using the Product, and in any event continued use of the Product after the modifications take effect constitutes your acceptance of the modifications. As an exception to these rules regarding changes to these Terms, (i) if we make changes to the Billing Policy, the version of the Billing Policy in effect at the time of purchase (or renewal) of a Paid Subscription shall apply to that usage plan, and (ii) any changes to our Privacy Policy will automatically become effective upon posting as described in the Privacy Policy.

15. Governing Law, Arbitration, and Class Action/Jury Trial Waiver.

  1. Governing Law. These Terms will be construed in accordance with the laws of the State of Victoria, Australia without reference to its choice of law provisions and without regard to the United Nations Convention on Contracts for the International Sale of Goods. The Federal and State courts located in the City of Melbourne, Australia will be the exclusive venue for any claim or dispute between the parties and the parties hereby consent to the personal jurisdiction of those courts for such purposes. The prevailing party in any dispute under these Terms will be entitled to its costs and reasonable attorneys’ fees.
  2. Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from SmartPath. For any dispute with SmartPath, you agree to first contact us at [email protected]and attempt to resolve the dispute with us informally. In the unlikely event that SmartPath has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration as defined in the Commercial Arbitration Act 2011 (Vic). The arbitration will be conducted in Melbourne, Australia, unless you and SmartPath agree otherwise. If you are using the Product for commercial purposes, each party will be responsible for paying any arbitration filing, administrative and arbitrator fees in accordance with arbitration regulations, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Product for non-commercial purposes: (i) arbitration may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from arbitration; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section 15shall be deemed as preventing SmartPath from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
  3. Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the product for personal, commercial or other purposes, all claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action or similar, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into these terms, you and SmartPath are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind to the extent permitted by applicable law.

16. General

  1. Contract Mechanics and Interpretation. These Terms constitute the entire agreement between you and SmartPath related to the Product and supersede any prior or contemporaneous agreements relating to the Product. If any provision of these Terms is held unenforceable, that provision will be enforced to the extent permissible by law and the remaining provisions will remain in full force. No provision of these Terms will be deemed waived unless the waiver is in writing and signed by SmartPath. Except as set forth in Section 14 (Modifications to Terms), all amendments to these Terms must be in writing and signed by both parties. In these Terms headings are for convenience only and “including” and similar terms will be construed without limitation.
  2. Assignment. You may not assign or transfer these Terms or any rights hereunder, and any attempted assignment or transfer in violation of the foregoing will be void. SmartPath may freely assign or transfer its rights or obligations hereunder at its sole discretion. These Terms will bind and inure to the benefit of each party’s permitted successors and assigns.
  3. SmartPath Contact Information. If you have any questions, complaints or claims regarding the Product, please contact:

Smartpath PTY LTD
133 Green Street
Cremorne VIC 3121
Email: [email protected]

  1. Notices to You. We may send notices to your email on file or through the Product. All notices are effective upon delivery.
  2. Publicity. SmartPath may use Customer’s name, logo and marks on SmartPath’s customer lists and marketing materials.
  3. Export Control. The Product is subject to Australian export control laws and regulations and may be subject to foreign export or import laws or regulations. You agree to comply strictly with all such laws and regulations and not to use or transfer the Product for any use relating to nuclear, chemical, or biological weapons or missile technology. You also represent and warrant that you are not located in a country that is subject to Australian government embargo or that has been designated by the Australian government as a “terrorist supporting” country and that you are not listed on any Australia government list of prohibited or restricted parties.
  4. Open-Source Software. The Product may contain or be provided with components licensed under “open source” software licenses (“OSS”). We list the OSS at Acknowledgments and may update the list from time to time as our usage of OSS changes. To the extent required by the applicable OSS license, the terms of such licenses will apply in lieu of the terms of these Terms with respect to such OSS.
  5. Government Users. The Product includes commercial computer software and commercial computer software documentation. If the user or licensee of the Product is an agency, department, or other entity of the Australian Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Product or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by these Terms in accordance with Australian Defence Procurement and Contracting Policies for military purposes. The Product was developed fully at private expense. All other use is prohibited.
  6. Force Majeure. SmartPath will not be liable to Customer in any way whatsoever for any failure or delay in performance of any of its obligations under these terms arising out of any event or circumstance beyond the reasonable control of SmartPath.

17. Apple-Related Terms

If you downloaded the Software from Apple’s App Store, then the following terms apply: These Terms are between you and SmartPath, and not with Apple. However, as required by Apple, Apple and its subsidiaries will be third party beneficiaries of these Terms and will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary. As described in Section 10 (Disclaimer of Warranties), to the maximum extent permitted by law, we do not make any warranties about the Software. If the Software is nonetheless deemed not to conform to any warranty that may be implied at law, you may notify Apple and Apple will refund the purchase price (if any) for the Software to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation with respect to the Software, and, as between Apple and SmartPath, any other claims, losses, liabilities, damages, costs or expenses attributable to a failure to conform to a warranty will be SmartPath’s responsibility. Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the Software. As between SmartPath and Apple, SmartPath is solely responsible for the Software and for addressing any claims you or any third parties have about the Software or your possession or use of the Software, including (i) product liability claims, (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement and (iii) claims arising under consumer protection or similar legislation. In the event of any third party claim that the Software or your possession or use of the Software infringes that third party’s intellectual property rights, Apple will not be responsible for the investigation, defence, settlement or discharge of such claim.

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