Smarter LLC - Terms of Service
Updated: October 14, 2022
Welcome to Smarter LLC, (“Smarter”) (the “Smarter Site”) and/or Service (defined below), owned and operated by Smarter LLC (“Smarter,” “we,” or “us”). Smarter provides remote and in-person technical training, support, planning and recommendations to help older adults stay connected to friends and family, maximize their independence and age in place as safely, securely and cost effectively as possible. Smarter also provides peace of mind to the adult children of older adults as well as their wider family, loved ones and caregivers through a family centered and personalized approach.
Terms of Service
We will provide services and benefits to: (1) the older adult who purchases certain Services directly (“Subscriber”), (2) the individual or entity that purchases certain Services on behalf of the Subscriber (“Purchaser”) and/or (3) the people who reside at the Subscriber’s primary residence; the location of the primary residence associated with the Services must be in the U.S. (“Service Address”).
We will provide the Service to you as described in these Terms, including support, if applicable, for your consumer electronics, products and technology related services, regardless of whether the products were purchased from us. For the sake of clarity, any Service provided in connection with your consumer electronics and appliances is not a guarantee, warranty, or extended warranty that such products will not contain defects or that we can repair any item or that we will replace or provide a refund of your product’s purchase price in the event your product cannot be repaired.
These Terms also apply to and govern your access to and use of any website, mobile website, social media site, software, email exchange of information, and any other digital Service, including any services, features, pages, and functions contained or offered therein, including any transactions, orders, sales, purchases, or the acquisition of goods or services (collectively the “Service”), that are owned, operated, or provided by Smarter LLC, as well as any of its subsidiaries, divisions, and affiliates (“Smarter”).
By using the Service, you agree that you are at least the legal age of majority in the jurisdiction in which you reside or, if you are not, that you have obtained parental or guardian consent. The Service is not targeted for use by children under the age of eighteen, and if you are under the age of eighteen, you are not allowed to use the Service.
THESE TERMS AFFECT YOUR LEGAL RIGHTS, RESPONSIBILITIES, AND OBLIGATIONS, GOVERN YOUR USE OF THE SERVICE, ARE LEGALLY BINDING, LIMIT SMARTER’S LIABILITY TO YOU, REQUIRE YOU TO INDEMNIFY SMARTER, AND TO SETTLE CERTAIN DISPUTES THROUGH ARBITRATION. YOUR CONTINUED USE OF THE SERVICE AFFIRMS YOUR AGREEMENT TO THESE TERMS. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS OR ANY FUTURE MODIFICATIONS OR AMENDMENTS TO THESE TERMS, DO NOT USE OUR SERVICE.
These Terms are written in the English language. We do not guarantee the accuracy of any translated versions of these Terms. To the extent any translated versions of these Terms conflict with the English language version, the English language version of these Terms shall control.
SMARTER IS NOT A MEDICAL PROVIDER AND DOES NOT PROVIDE MEDICAL OR EMERGENCY SERVICES OF ANY KIND. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY.
Certain services may be subject to additional terms and conditions specified by us from time to time, and your use of such services is subject to those additional terms and conditions, which are hereby incorporated into these Terms by reference.
Please read this Agreement 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.
Information on Our Site
We try to be as accurate as possible with the information we present on the Smarter’s website and other digital and physical communication, Services, policies and training materials. We will make reasonable efforts to accurately display the attributes of the Services and Products we market and sell. We do not warrant that product and service descriptions or other content is accurate, complete, or error free. Prices and promotions are subject to change, and may vary from those offered in different areas we Service. We cannot confirm the availability or price of an item or Service until you place your order. Despite our best efforts, sometimes an item in our catalog may not be available, the offer may have been misstated, or an item may be mispriced. For any of these reasons, we may cancel your order or we may contact you for instructions on the order.
This is a contract between you and Smarter. You must read and agree to these Terms before using any part of the Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Smarter, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of these Terms. The Service is not available to any Users previously removed from the Service by Smarter.
If you are a Purchaser purchasing the Service on behalf of another User, you represent and warrant to Smarter that you have the full right, power, and authority to enter into these Terms, receive information related to the Service on behalf of the User, and grant the rights hereunder. You further represent and warrant that you have the legal right, power, and authority to consent to these Terms on behalf of the User and yourself, and you are at least 18 years of age. You have read, and understand, the Terms and you hereby consent to and approve the User’s execution of these Terms, and agree that both the User and you will be bound by all of its Terms.
Subject to these Terms, we will provide the following standard-level in-person, phone, or web-based technical support, training, and services, as applicable, “Services,” provided that all in-person visits will be at Smarter’s sole discretion and may be suspended for any or no reason.
Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service for your personal, non-commercial use only and as permitted by the features of the Service. Smarter reserves all rights not expressly granted herein in the Service and Smarter Content (as defined herein). Smarter may terminate this license at any time for any reason or no reason.
Your Smarter account gives you access to the services and functionality that we may establish and maintain from time to time and at our sole discretion. We may maintain different types of accounts for different types of Users. You may have the option to designate people that you would like to be able to view information and reports regarding your use of the Service (“Authorized Viewers”). You are solely responsible for the activity that occurs on your Smarter account.
You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date. You must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Smarter immediately of any breach of security or unauthorized use of your account. Smarter will not be liable for any losses caused by any unauthorized use of your account.
By providing Smarter your email address or permitting Smarter to create an email address on your behalf, you consent to us using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences by emailing email@example.com. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Smarter servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Smarter grants the operators of public search engines revocable permission to use spiders to copy publicly available materials from the Smarter Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
Accessing any audiovisual content that may be available on the Service for any purpose or in any manner other than Streaming (as defined below) is expressly prohibited unless explicitly permitted by the functionality of the Service. “Streaming” means a contemporaneous digital transmission of an audiovisual work via the Internet from the Service to a User’s device in such a manner that the data is intended for real-time viewing and not intended to be copied, stored, permanently downloaded, or redistributed by the User.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.
You are solely responsible for your interactions with other Smarter Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Smarter will have no liability for your interactions with other Users, or for any User’s action or inaction.
Reservation Scheduling & Cancellation
All Memberships and Smarter offerings, other than Emergency, After Hours or Same Day Support, are subject to a one business day cancellation policy. Users may cancel or change a reservation for a visit (the “Reservation”) up until one business day before it begins. Less than one business time of the Reservation start time, it is no longer possible to cancel or move your Reservation, and you will be billed for the entire Reservation.
Smarter’s Service is operated by Smarter LLC in the United States. In order for us to provide our Services, you agree that we may transfer, use and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law. If you choose to access our Services from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws; provided, however, that the Service is not available to, and should not be accessed and used by, residents of the European Economic Area.
Enrollment in Smarter’s SMS or Text Messaging Services
We may offer you the chance to enroll to receive SMS/text messages from Smarter. You may enroll to receive text messages about account-related news and alerts and/or offers for the Service. By enrolling in Smarter’s SMS/text messaging service, you agree to receive text messages from Smarter to your mobile phone number provided, and you certify that your mobile number provided is true and accurate and that you are authorized to enroll the designated mobile number to receive such text messages. You acknowledge and agree that the text messages may be sent using an automatic telephone dialing system and that standard message and data rates apply. Consent is not required as a condition of purchase. For help or to unsubscribe from text messages at any time, contact us at firstname.lastname@example.org. You consent that following such a request to unsubscribe, you may receive one final text message from Smarter confirming your request.
Smarter Advisors and Members
Smarter provides a Service for enabling connections between Users through use of the Service. Although Smarter performs certain background screenings on both independent contractors and employees and applicants, neither Smarter, nor any of its subsidiaries or affiliates, assumes any responsibility for any of the acts or omissions of any Smarter Advisor or Member, such as property damage or bodily injury that may result in connection with the services a Smarter Advisor may perform for a Member. Smarter may recommend products or services or provide related recommendations that are believed to fit a Member’s needs, but we make no guarantees of the quality, fit or ultimately appropriateness of the products, services and recommendations we provide . You acknowledge that your reliance on any Smarter Advisor, employee or third party product or service, or any information provided to you by them via the Service, is solely at your own risk and you assume full responsibility for all risk associated herewith.
Ownership of Service
The Service and all of its content, including without limitation all copyrights, patents, trademarks, service marks, and trade names, as well as all logos, text, design, graphics, logos, icons, images, audio clips, downloads, interfaces, code and software, as well as the selection and arrangement thereof, and all other intellectual property (collectively referred to as the “Content”), are all proprietary and owned or controlled by Smarter, our licensors, and certain other third parties. All right, title, and interest in and to the Content available via the Service is the exclusive property of and owned by Smarter, our licensors, or certain other third parties, and is protected by United States and international copyright, trademark, trade dress, patent or other intellectual property laws to the fullest extent possible.
A limited, revocable, non-transferable license is granted to temporarily download one copy of the intellectual property displayed via the Service for personal, non-commercial transitory viewing only. This is not a transfer of title, right, or interest in the Service or Content. The license does not give you the right to, and you are strictly prohibited from, copying the Content, modifying the Content, using the Content for any commercial purpose, publicly displaying the Content, attempting to decompile or reverse engineer the Content, removing any copyright, trademark, or other proprietary notations from the Content, or otherwise infringing upon the intellectual property rights of Smarter or its licensors. This license shall automatically terminate if you violate any of these restrictions, or any provision of the Terms, and may be terminated by Smarter at any time for any or no reason. Upon termination of this license, you must destroy any downloaded materials in your possession whether in electronic or printed format. Except as expressly provided in these Terms, no assignments or license of intellectual property are granted by Smarter.
You may use the Service only for lawful purposes and shall not: (1) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (2) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (3) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (4) interfere with or disrupt the integrity or performance of the Service or its related systems or networks. We reserve the right to determine whether or not your use of the Service is acceptable and to immediately revoke your access to the Service at our sole discretion.
Trademarks & Intellectual Property
The “Smarter” name and logo are trademarks of Smarter LLC. Smarter may own and use a variety of other trademarks related to our company and/or Service including but not limited to: Smarter LLC, 805-SOLVE-IT, SOLVE-IT, Smarter Advisors, Smarter Health, Smarter Life Plan, Smarter On Demand, Smarter AI, Smarter Living, Smarter Docs and related logos. All rights are reserved by Smarter LLC. All other trademarks, brands, and names are the property of their respective owners. Nothing contained in the Service should be construed as granting any license or right to use any trademark displayed on this site or sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of Smarter trademarks, logo or content (“Smarter Content”) without the express written permission of Smarter or such third party that may own the trademark. Use of Smarter Content for any purpose not expressly permitted by these Terms is strictly prohibited and may be a violation of federal and state trademark laws.
Any and all photographs, articles, images, graphics, videos, sounds, music, audio recordings, text, files, profiles, communications, comments, feedback, ratings, reviews, survey responses, suggestions, ideas, concepts, questions, data or other content that you (i) submit or post on or through the Service, on any of our blogs, social media accounts or through tools or applications we provide for posting or sharing such content with us; or (ii) have posted or uploaded to your social media accounts, including but not limited to Instagram™, Twitter™, Facebook™, TikTok™, SnapChat™, Pinterest™, Amazon™ etc., which are tagged with any Smarter hashtag you enter or promoted hashtag created by Smarter (collectively “User Content”) will be deemed non-confidential and non-proprietary.
By submitting or posting any User Content, you grant to Smarter and its affiliates a perpetual, irrevocable, royalty-free, worldwide, sublicensable and transferable license to copy, publish, translate, modify, reformat, create derivative works from, distribute, reproduce, sell, display, transmit, publish, broadcast, host, archive, store, cache, use or otherwise exploit all or any portion of the User Content, as well as your name, persona and likeness included in any User Content and your social media account handle, username, real name, profile picture and/or any other information associated with the User Content, in any commercial or noncommercial manner whatsoever, in whole or in part, in any and all distribution channels, forms, media or technology, whether now known or hereafter developed, including but not limited to in stores, printed marketing materials, emails, web pages, social media accounts and for any other marketing, advertising, public relations, sales or promotional purposes with or without attribution and without further notice to you.
Neither you, nor any other person or entity, will have the right to (i) receive any royalty or consideration of any kind for the use of the User Content pursuant to these Terms or (ii) inspect or approve the editorial copy or other material that may be used in connection with the User Content. Smarter will be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products that incorporate or otherwise rely upon such information. Smarter will have no obligation to monitor User Content, use or display User Content, compensate you for submitting User Content or respond to any User Content. Smarter retains the right, in its sole discretion and without prior notice, to remove, revise or refuse to post any User Content for any reason or no reason. Subject to the licenses granted in these Terms, you retain ownership of any copyright and other rights you may have in the User Content.
By submitting or posting User Content on the Service, on your social media accounts or through any tools or applications we provide for posting or sharing your User Content with us, you represent and warrant that (i) you own or control any and all rights in and to the User Content, and the right to grant all of the rights and licenses in these Terms, and if you are not the holder of such rights, the holder of such rights has completely and effectively waived all such rights and irrevocably granted you the right to grant the licenses stated above without the need for payment to you or any other person or entity; (ii) you have obtained permission from any individuals that appear in the User Content to use, and grant others the right to use, their name, image, voice and/or likeness without the need for payment to you or any other person or entity; (iii) you are 18 years of age or older; and (iv) the User Content does not (a) contain false or misleading information, (b) infringe on the intellectual property, privacy, publicity, statutory, contractual or other rights of any third party, (c) contain any libelous, defamatory, obscene, offensive, threatening or otherwise harassing or hateful content, (d) contain any addresses, email addresses, phone numbers or any contact information or (e) contain computer viruses, worms or other harmful computer code or files or references other websites.
Upon request by Smarter, you will furnish Smarter any documentation, substantiation or releases necessary to verify your compliance with these Terms. You are solely responsible for the User Content and you hereby agree to indemnify and hold Smarter and its employees, agents, affiliates, assigns and licensees harmless from any and all damages, claims, expenses, costs or fees arising from or in connection with a breach of any of the foregoing representations or your violation of any law or rights of a third party.
Smarter does not guarantee the truthfulness, accuracy or reliability of any User Content or endorse any opinions expressed by you or anyone else. Your User Content may be posted and transmitted to others at your own risk. When you share content with us, you may disclose any affiliation(s) you have for which Smarter is not responsible and is deemed to be independent of such affiliations unless we state otherwise.
We cannot control the actions of other users of the Service with whom you may choose to share your User Content. By submitting or posting the User Content you fully and unconditionally release and forever discharge Smarter and its officers, directors, employees and agents from any and all claims, demands and damages (actual or consequential, direct or indirect), whether now known or unknown, of every kind and nature relating to, arising out of or in any way connected with: (i) disputes between you and one or more users or any other person or entity, or (ii) the use by Smarter or you of the User Content, including, without limitation, any and all claims that use of the User Content pursuant to these Terms violates any of your intellectual property rights, copyrights, rights of publicity or privacy, “moral rights,” or rights of attribution and integrity. You acknowledge and agree that Smarter has no control over, and will have no liability for any damages resulting from, the use (including, without limitation, re-publication) or misuse by you or any third party of any User Content. Smarter acts as a passive conduit for User Content and has no obligation to screen or monitor User Content. If Smarter becomes aware of any User Content that allegedly may not conform to these Terms, Smarter may investigate the allegation and determine in its sole discretion whether to take action in accordance with these Terms. Smarter has no liability or responsibility to Users for performance or nonperformance of such activities.
Smarter is not the source of, does not verify or endorse and takes no responsibility for the content of communications made using the Service or any materials submitted or made available through the Service via any function which allows a User to post or share User Content.
Smarter has the absolute right to remove and/or delete without notice any User Content within its control that it deems objectionable. You consent to such removal and/or deletion and waive any claim against Smarter for such removal and/or deletion. Smarter is not responsible or liable for failure to store posted content or other materials you transmit through the Service. You should take measures to preserve copies of any data, material, content or information you post on the Service or any other sites or Services. All content submitted by you to the Service may be retained by us indefinitely, even after you terminate your account.
Utilizing Your Computer or Other Device
Some of the benefits of Smarter’s Services require access to information on your computer or other applicable device. You hereby grant permission for Smarter to monitor your computer or other applicable device (including, but not limited to, your device”s memory) and to communicate information, including, without limitation, your Account information, to Smarter’s servers for the purposes of analyzing your device’s performance during use of our Services. Additionally, our Service will utilize the processor, bandwidth and hard drive (or other memory or storage hardware) and/or cache of your computer or other applicable device for the limited purpose of facilitating the communication between, and the transmittal of data, content, services or features to, you and other users, and to facilitate the operation of the network of computers running instances of our Service.
Access to Your Premises; Equipment; and Remote Access
If you purchase a Service that includes the in-person Service, you and all applicable Users agree to allow Smarter and our agents the right to enter the property at which the Service will be provided (the “Premises”) at reasonable times, for purposes of performing the Services including the installing, configuring, maintaining, inspecting, upgrading, replacing and removing Equipment. You warrant that you are either the owner of the Premises or that you have the authority to give Smarter access to the Premises. If you are not the owner or lessee of the Premises, you are responsible for obtaining any and all necessary approval from the owner to allow Smarter and our agents into the Premises to perform the activities specified above. In addition, you agree to supply Smarter or our agent, if requested, the owner’s name, address, and phone number and/or evidence that the owner has provided such authorization. You must provide a safe, non-threatening environment for Smarter to provide technical support and/or services. We will use commercially reasonable efforts to ensure that our employees and agents have each passed a background check and provide the Service in a safe and reasonable manner.
You agree to allow Smarter and our agents the rights to insert hardware in the Equipment, send software and/or “downloads” to the Equipment, and install, configure, maintain, inspect, and upgrade the Equipment solely at your own risk. You represent and warrant you are either the owner of the Equipment or that you have the authority to give us access to the Equipment. If you are not the owner of the Equipment, you are responsible for obtaining any and all necessary approval from the owner to allow Smarter and our agents access to the Equipment to perform the activities described in this paragraph. In addition, you agree to supply Smarter or our agents, if we ask, the owner’s name, address and phone number and/or evidence that the owner provided such authorization.
C. Additional Terms for Remote Access
To receive web-based remote technical support, you will need to provide a high-speed internet connection, a telephone, mobile or video connection with us, and/or consent to share with us your screen and control of your mouse, if applicable. You will provide information about the symptoms and causes of the issues you are experiencing. You will respond to our requests for information including but not limited to the Equipment serial number, model, version of the operating system and software installed, any peripheral Equipment connected to or installed on the Equipment, any error messages displayed, the actions which were taken before the Equipment experienced the issue, and the steps taken to resolve the issue. You agree that immediately after we connect to your Equipment remotely, we will be able to see documents, software, and applications on your desktop or open on your screen.
D. Video Recordings
As part of the Service, Smarter (and/or others on our behalf) may record (both audio and video) parts of the Service (“Recordings”) in any manner and for any purpose in connection with Smarter, its business, marketing, or for any other lawful purpose. By agreeing to these Terms and participating in the Service: (i) you agree that your image, likeness, voice, statements and other identifying characteristics (your “Image”) may be Recorded, and you consent to the use of your Image in connection with the use of the Recordings; (ii) you irrevocably grant Smarter and its agents, contractors, licensees and designees and their respective successors and assigns (the “Smarter Parties”) a non-exclusive, worldwide, royalty-free and fully paid-up, perpetual license to use, reproduce, distribute, prepare derivative works of, translate, display, perform and otherwise use the Recordings and your Image therein, in whole or in part, in any and all media in order to provide the Service to you; (iii) you waive any right you may have to inspect and/or approve the use of the Recordings or any reproductions thereof, and you agree that Smarter is not obligated to make any use of your Image or exercise any of the rights granted to it; (iv) you waive and release any and all rights of privacy and publicity, and any and all claims to compensation or damages or of violation of intellectual property rights, in connection with the use of the Recordings and your Image therein; and (v) you represent that you are of full legal age and have read this release and fully understand its contents.
No Professional Advice
Smarter is not providing professional advice. No action should be taken based upon any information contained in the Smarter Site (for example legal, financial, health or medical advice), if such information is provided, it is for informational purposes only and should not be construed as professional advice. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable domain you seek advice, including without limitation any legal professionals permitted to practice law in your applicable jurisdiction.
Mobile Application License
If you access the Service via a mobile application, then we grant you a revocable, non-exclusive, non-transferable, limited right to install and use the mobile application on wireless electronic devices owned or controlled by you, and to access and use the mobile application on such devices strictly in accordance with these Terms.
You agree you will not (1) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application; (2) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the application; (3) violate any applicable laws, rules, or regulations in connection with your access or use of the application; (4) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or any other licensors of the application; (5) use the application for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (6) make the application available over a network or other environment permitting access or use by multiple devices or users at the same time; (7) use the application for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the application; (8) use the application to send automated queries to any website or to send any unsolicited commercial email; or (9) use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the application.
If we make any material changes, and you have registered to use the Service, we may also send an email to you at the last email address you provided to us, but we are not required to do so and merely do as a convenience to you. Your continued use of the Service after our provision of notice to you will constitute your affirmative acceptance to the modified Terms. If you do not agree to, or cannot comply with, the Terms as amended, you must stop using the Service immediately. Disputes arising under these Terms will be resolved in accordance with the version of these Terms in place at the time the dispute arose.
Provision of the Services
You are responsible for any Internet connection, data usage and telecommunications fees and charges that you incur when accessing the Smarter’s Services. You acknowledge and agree that Smarter may make changes to any aspect of our Services at any time without notifying you in advance.
Termination of Services
Smarter reserves the right to deny use of the Services to any person or entity at Smarter’s sole and absolute discretion. You acknowledge and agree that Smarter may stop providing any aspect of the Services or restrict your use of the Services at any time, without notifying you in advance, for any reason or no reason. If Smarter disables your access to your Account, you may be prevented from accessing the Services, your Account details or any materials contained in your Account.
Smarter does not endorse or recommend any Advisor, Employee, Agent over another, and you agree that Smarter is not responsible for the accuracy or completeness of information displayed through the Service. To the extent Smarter makes a recommendation to you of a third party product or service, we understand and agree that we are not responsible for the performance of third party products or services nor the communication or interaction of third party products and services with Smarter provided services or products, hereafter (“Solutions”).
Smarter represents and warrants that the Services will be performed in a good and workmanlike manner, using the degree of skill, care, and judgment consistent with customarily accepted good business practices. This limited warranty is valid for a period of ninety (90) days following the date the Services were performed. To make a claim under this limited warranty for any Services performed, contact us at email@example.com and we will arrange for someone to re-perform the Services. Such re-performance shall be the sole remedy for any claims made under this limited warranty. However, you understand and agree that Smarter cannot guarantee all work will be error free or defect free due to the interoperability and dependency of data, systems and users among devices and/or services and third parties which may be outside our control and such warranty shall not apply to third party related Solutions.
DISCLAIMER OF WARRANTIES
THE SERVICE AND ALL SERVICES, INFORMATION, GOODS, AND MATERIALS MADE AVAILABLE OR PURCHASED THROUGH THE SERVICE ARE PROVIDED TO YOU “AS IS” WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND WE DISCLAIM ALL STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES, TERMS, AND CONDITIONS WITH RESPECT TO THE SERVICE AND ALL SERVICES, INFORMATION, GOODS, AND MATERIALS MADE AVAILABLE THROUGH THE SITE, INCLUDING THE REPRESENTATIONS AND WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE TO THE MAXIMUM ALLOWED BY LAW. WE MAKE NO REPRESENTATION OR WARRANTY THAT THE SERVICE (OR ANY PART THEREOF) WILL BE ACCURATE, COMPLETE, OR ERROR-FREE, NOR THAT ANY PARTICULAR SOFTWARE OR HARDWARE, WILL BE COMPATIBLE WITH THE SERVICE, AND YOU HEREBY AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO (A) OBTAIN AND PAY FOR ANY SOFTWARE, HARDWARE AND SERVICES (INCLUDING INTERNET CONNECTIVITY) NEEDED TO ACCESS AND USE THE SERVICE AND (B) ENSURE THAT ANY SOFTWARE, HARDWARE, AND SERVICES THAT YOU USE WILL FUNCTION CORRECTLY WITH THE SERVICE. YOU AGREE THAT YOU MUST EVALUATE AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SERVICE, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SERVICE AND/OR THIRD PARTIES.
SMARTER MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SERVICE. SMARTER DOES NOT REPRESENT OR WARRANT THAT (I) YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (II) THAT OPERATION OF OUR SERVICES OR THOSE OF THIRD PARTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (III) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS; (IV) DEFECTS IN THE OPERATION OF THE SERVICE WILL BE CORRECTED; OR (V) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
USERS HEREBY ACKNOWLEDGE THAT SMARTER DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR THE SERVICE’S EXECUTION EXCEPT AS SET FORTH IN THIS AGREEMENT AND THEREFORE EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PERFORMED IN ANY MANNER OUTSIDE OF SMARTER’S CONTRACTED SERVICES PROVIDED TO YOU AND SCHEDULED WITH US DIRECTLY. FOR EXAMPLE, WE ARE NOT RESPONSIBLE FOR SERVICES PROVIDED BY AN AGENT OF SMARTER IF SUCH SERVICES WERE CONTRACTED SEPARATELY BETWEEN YOU AND THE SMARTER AGENT DIRECTLY, OUTSIDE SMARTER’S SYSTEMS OR CONTRACTED SERVICES OR KNOWLEDGE.
CUSTOMER IS RESPONSIBLE FOR (A) OBTAINING ALL PERMITS, LICENSES AND OTHER PERMISSIONS, IF ANY, THAT MAY BE REQUIRED TO BE OBTAINED FOR THE RESPECTIVE SERVICES TO BE PERFORMED, AND (B) CONFIRMING THAT ANY NON THIRD PARTY SERVICES FOR SUCH CUSTOMER POSSESSES ALL REQUISITE PERMITS AND TRADE LICENSES THAT MAY BE REQUIRED FOR THE PERFORMANCE OF SUCH SERVICES. SMARTER ASSUMES NO RESPONSIBILITY FOR A CUSTOMER’S FAILURE TO OBTAIN OR CONFIRM SUCH PERMITS, LICENSES OR PERMISSIONS OR OTHERWISE COMPLY WITH ANY APPLICABLE LAWS, RULES OR REGULATIONS OF THIRD PARTIES. WE ENCOURAGE YOU TO CONFIRM ANY SUCH REQUIREMENTS AND TO ASK TO SEE A COPY OF ANY LICENSES IF APPLICABLE.
SMARTER IS NOT RESPONSIBLE FOR THE PERFORMANCE OR COMMUNICATIONS OF USERS TO EACH OTHER, NOR DOES IT HAVE CONTROL OVER THE QUALITY, TIMING, LEGALITY, FAILURE TO PROVIDE, OR ANY OTHER ASPECT WHATSOEVER OF AGREEMENTS BETWEEN USERS, CUSTOMERS, USERS AND SMARTER AGENTS OUTSIDE OF SMARTER’S OFFICIAL SERVICES, NOR OF THE INTEGRITY, RESPONSIBILITY, COMPETENCE, QUALIFICATIONS, OR ANY OF THE ACTIONS OR OMISSIONS WHATSOEVER OF ANY USERS, OR OF ANY RATINGS PROVIDED BY USERS WITH RESPECT TO EACH OTHER.
SMARTER DISCLAIMS ANY AND ALL LIABILITY RELATING TO YOUR INTERACTIONS WITH ANY SMARTER ADVISOR, TECH, EMPLOYEE OR AGENT, CUSTOMER(S) OR OTHER USER(S) WHICH DOESN’T COMPLY WITH THIS AGREEMENT AND OUR POLICIES. SMARTER SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR, ANY REPRESENTATIONS OR STATEMENTS MADE TO YOU THAT DO NOT COMPLY WITH THIS AGREEMENT AND OUR POLICIES IN EFFECT AT THE TIME OF YOUR SERVICE. AS SUCH, YOU UNDERSTAND AND ACKNOWLEDGE THAT SMARTER SHALL HAVE NO LIABILITY TO YOU FOR ANY STATEMENTS OR REPRESENTATIONS MADE BY TO YOU AS A RESULT OF YOUR USE OF OUR SERVICES WHICH DO NOT COMPLY WITH OUR POLICIES.
NEITHER SMARTER NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, STOCKHOLDERS, INVESTORS, SUBSIDIARIES, ATTORNEYS, ACCOUNTING AND FINANCE REPRESENTATIVES, INSURERS, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS “SMARTER PARTIES”) IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES AND YOU HEREBY RELEASE SMARTER PARTIES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SMARTER OR THE SERVICES.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMARTER AND THE OTHER SMARTER PARTIES SHALL NOT BE LIABLE TO YOU UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, SERVICE OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE, EVEN IF SMARTER OR THE OTHER SMARTER PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO CASE SHALL THE LIABILITY OF SMARTER OR ANY OF THE OTHER SMARTER PARTIES EXCEED, IN THE AGGREGATE, THE GREATER OF A) FIVE HUNDRED DOLLARS ($500), OR B) THE FEES ACTUALLY PAID BY THE CUSTOMER TO US FOR SERVICES RECEIVED FOR THE PREVIOUS SIX MONTHS.
THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF CERTAIN WARRANTIES, CONDITIONS OR REPRESENTATIONS SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES HERETO, THAT THE PARTIES HAVE RELIED UPON SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT.
If you are a California resident, you agree to consciously waive all claims, both known and unknown that may be later discovered, to the maximum extent permitted by law, including but not limited to that permitted by California Civil Code Section 1542, which states “[a] general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Release & Indemnification
You hereby agree to release Smarter from all damages (whether direct, indirect, incidental, consequential or otherwise), losses, liabilities, costs and expenses of every kind and nature, known and unknown, arising out of a dispute between you and a third party (including other Users) in connection with any in person or remote Services. In addition, you waive any applicable law or statute, which says, in substance:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Except to the extent prohibited under applicable law, you agree to indemnify, defend, and hold harmless Smarter and its officers, directors, employees, and agents from and against any claims, losses, liabilities, damages, costs, or expenses, including attorneys’ fees and costs, that may arise from or in connection with (a) your use of, or activities in connection with, the Service, including use of any good, product, or service purchased through the Service, (b) violation of these Terms by you, and (c) the acts or omissions of any other User. If you fail to promptly indemnify and defend a covered claim, Smarter shall have the right to defend itself, and in such case, you shall promptly reimburse Smarter for all of its associated costs and expenses. Smarter reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification.
You agree to defend, indemnify and hold harmless Smarter and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above, including but not limited to the section of this Agreement “Access to your Premises; Equipment; and Remote Access,”; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) User Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
Account, Password, and Security
You may only create and hold one account for your personal use. You are the sole authorized user of your account and agree to provide true, accurate, current, and complete information about yourself in connection with your account. You are responsible for maintaining the security and confidentiality of any password and account number provided by you or Smarter for accessing the Service. You are solely and fully responsible for all activities that occur under your password or account. Smarter may assume that any communications it receives through your account have been made by you unless Smarter receives notice otherwise. Smarter expressly disclaims any liability from misuse of your account. Should you suspect that any unauthorized party may be using your password or account or you suspect any breach of security, contact Smarter immediately at firstname.lastname@example.org. You will not sell, transfer, or assign your account or any account rights. Accounts may only be set up by the individual that is the subject of the account, and who is of the age of majority. We generally do not review accounts for authenticity and are not responsible for any unauthorized accounts that may appear on the Service. For any dispute as to account creation or authenticity, we shall have the sole right but are not obligated, to resolve such dispute as we determine appropriate in our sole and exclusive discretion, with or without notice.
YOU ARE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THE SERVICE BY ANYONE USING YOUR PASSWORD AND IDENTIFICATION WHETHER OR NOT SUCH ACCESS TO AND USE OF THE SERVICE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS, TRANSMISSIONS, ORDERS, PAYMENTS, FINANCIAL TRANSACTIONS, AND OTHER OBLIGATIONS INCURRED THROUGH SUCH ACCESS OR USE.
User Account Sharing or Transfers.
Accounts are registered to you personally and may not be transferred at any time under any circumstances. You should not share your Account with, or disclose your password to, anyone else.
Smarter cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information and/or User Content for improper purposes. You acknowledge that you provide your personal information and/or User Content at your own risk. You are solely responsible for maintaining the confidentiality of your Account password and for all activities that are conducted via your Account. You agree to notify Smarter immediately if you become aware of any unauthorized use of your password or of your Account.
Links to Other Websites
The Service may provide links to other third-party websites (“Linked Sites”). Smarter has not reviewed all of the information on the Linked Sites, does not maintain Linked Sites, and cannot control the completeness, accuracy, or security of the content contained on any Linked Site. The content of, including materials and information contained on, any Linked Site is solely the responsibility of the provider of that Linked Site. Smarter is not responsible for the contents of any such Linked Site, and the inclusion of any link to a Linked Site does not imply endorsement by Smarter of the Linked Site. The views and opinions expressed in Linked Sites are those of the authors or third parties and do not necessarily reflect the official policy or position of Smarter. If you decide to access any Linked Site, you do this entirely at your own risk. References to any names, marks, products, or services of any third parties, third-party information, or Linked Sites are provided solely as a convenience to you, and do not constitute or imply an endorsement, sponsorship, recommendation of, or affiliation with, the third party or its products and services. Smarter makes no representation or warranty as to any Linked Site content, products, or services, and you agree that Smarter shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party content, products, or services available on or through any Linked Site or similar resource.
Third Party Products, Services and Applications
In certain situations, Smarter acts as a conduit between members of the Service and third-party ride-sharing apps like Lyft or Uber, third-party food and grocery delivery apps, mobile/cellular service providers, internet connectivity, email providers, hands-free devices and related services, cable, social media or streaming service providers, password protection services or any other technical, physical, health, wellness or medical products, services or providers. In such situations, you authorize Smarter to act on your behalf to communicate with the designated driver, delivery person, product or service provider (via voice, text message, video call, direct message or email) to vet them, their equipment and/or services to make sure they meet your needs requirements or specifications as understood by Smarter and to aid in troubleshooting such products or services to correct or fix the issue you may experience, to suggest (or approve or disapprove) alternate products or services associated with your order, service ticket or purchase, or for any other reason Smarter deems appropriate. You further authorize Smarter to act as your agent and representative on your behalf, to initiate contact with such third party product or service providers, share account related information as required by the third parties, to vet and select products or services, communicate questions about the product and services, to select and approve (or disapprove) alternate products and services, initiate a work order, purchase order or service/repair ticket, monitor the installation and appropriate usage of products or services from start to finish, or otherwise perform acts as may be necessary for the selection, order, installation, training and ongoing use of the products or services we assist you with, as Smarter deems it appropriate.
Smarter is not responsible for the services provided by any third-party application, including but not limited to: web, mobile web, mobile app, desktop app, software or firmware. If you decide to use any third-party application service, including in connection with Smarter, you do this entirely at your own risk. Smarter will not vet any third party product, service or application to ensure it is safe or otherwise consistent with any technical complication, health, allergy, religious, or other dietary requirement, and you are solely responsible for ensuring the safety of any product, service, food or groceries you receive from any third-party service (even if delivery and ordering are coordinated through Smarter). Smarter makes no representation or warranty as to any third-party application, products, or services, and you agree that Smarter shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party product, service or application, including those made available to you by Smarter solely for your convenience. We recommend you review the terms and policies of any third-party products, services or applications prior to your use of or access to the same.
AS PERMITTED BY APPLICABLE LAW, WE SHALL UNDER NO CIRCUMSTANCES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, OR SPECIAL LOSS, OR OTHER DAMAGE, WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT, DEFAMATION, INFRINGEMENT OF COPYRIGHT, OR OTHER INTELLECTUAL PROPERTY RIGHTS, CAUSED BY THE EXHIBITION, DISTRIBUTION, OR EXPLOITATION OF ANY INFORMATION OR CONTENT CONTAINED WITHIN THESE THIRD-PARTY SERVICES.
- Membership Plans, Term & Renewals. We may offer users the opportunity to enroll in a Membership plan (a “Membership Plan”). Membership Plans are typically offered with an annual, quarterly or monthly membership structure. Unless otherwise cited, the Fee(s) and service level will be honored during the term of the Membership Plan contracted. Plans are subject to new pricing based on historical usage and/or the latest prevailing Fees in place at the time of renewal or after expiration of the term. All Membership Plans default to auto-renew for the same term as the expiring Membership Plan unless otherwise cited and shall continue to auto-renew unless canceled. At the election of Smarter, Membership Plans may be prorated the first month so that subsequent invoicing and services coincide with a calendar month, starting on the 1st of the month and ending the last business day of the month
- Annual Membership Plans. An Annual Membership Plan is a year long contractual commitment, billed and payable monthly, quarterly or annually. The Annual Membership Plan is an annual commitment regardless of the billing or payment frequency. For example, an Annual Membership Plan that is billed and paid monthly is still a twelve month contractual commitment.
- Quarterly & Monthly Membership Plans. Quarterly Membership plans have a three month term while a Monthly Membership Plan has a one month plan. As with all Membership plans, they shall automatically renew for successive terms until canceled.
- If you purchase a Membership Plan, you will be charged the Membership fee, plus any applicable taxes, plus a set-up fee (if applicable) and other any other charges (“Membership Fee”) as applicable, at the beginning of your Membership Plan and monthly, quarterly or annually, increments thereafter, as specified when you purchase such Membership Plan. Membership Plans and Membership Fees are posted on our website and are subject to change without notice, however we will honor your signed Membership Plan for the term cited in your agreement up to a maximum of one calendar year from your first Annual Membership Plan start date.
- Membership Initiation. Membership Plans become active as soon as your initial payment is processed. If you select the “Annual Plan, Pay Annually” option, the entire applicable annual Membership Fee plus applicable taxes will be charged at the initial payment. If you select the “Annual Plan, Pay Monthly” option, the applicable first month’s Membership Fee plus set-up fee and applicable taxes will be charged at the initial payment, and thereafter the monthly Membership Fee plus applicable taxes will be charged each month for the duration of the applicable year for that annual Membership Plan.
If you enroll in a free trial Membership, the free trial Membership will automatically convert into a paid Membership at the end of the trial period (which trial period will be indicated at the time of the enrollment in such trial period). Unless otherwise indicated, free trial Memberships will automatically convert into Smarter’s Annual Plan, Pay Monthly option. You may cancel the automatic conversion into a paid Membership online or by contacting Smarter support at email@example.com, at any time on or prior to, the last business day before the auto-conversion is scheduled to take effect on your Trial Membership end date.
Your Membership Plan will renew automatically at the end of the applicable Membership period (i.e., at the end of the one-year period) until you turn off auto-renewal. Renewal rates are subject to change, but you will be notified of any change in your rate and be provided with the option to cancel in accordance with these Terms. Membership Plan auto-renewal may be disabled at any time (but must be done on or prior to the last business day before the auto-renewal is scheduled to take effect in order to avoid being charged for such renewed term), however the Membership Plan will remain active for the remainder of the contracted Membership Period period and you will be responsible for the applicable charges for the remaining months of the contracted Membership Plan term. If you elect not to renew, your right to use the Service under the Membership Plan will continue until the end of your then current Membership period and will then terminate without further charges.
You may cancel your Membership Plan at any time, but shall be obligated to pay for the Services of the original contract term if you have a Monthly Membership Plan or Quarterly Membership Plans. For Annual Membership plans, you may cancel at any time but shall be obligated to pay for at least 3 months of Membership Services. If you choose to cancel your Membership Plan for an Annual Membership plan early, you will receive a prorated refund of the Membership Fees for the remaining full calendar months remaining in the Annual Membership Plan term, less any setup, customized training or setup Fees, unpaid Services, Fees for late rescheduling or visit cancellations, unpaid products, services and fees of third parties that we facilitate on your behalf, or to collect unpaid amounts due and less any pricing discounts, promotions or savings that you have received for the annual Membership Plan Pricing. For example, if you have an annual Membership Plan that started January and ends December, an you notify us on June 15th of the same year, your cancellation will take effect starting August 1st, the next full calendar month and your prorated refund, if you paid the Annual Membership in advance, would be refunded for the five months of August through December. Your Smarter Service will cease on the day or next business day we receive your written cancellation request. You may cancel your Membership Plan by contacting Smarter support at firstname.lastname@example.org or by calling us 1-805-SOLVE-IT.
Payment failures will result in immediate deactivation of the applicable Membership Plan(s). Smarter Services will not be available to Users with a deactivated plan due to payment failure. Any outstanding payments will need to be made in order to re-activate the applicable Membership Plan and bring your account current.
Smarter may offer gift cards for purchase (“Gift Cards”). Gift Cards are redeemable only as payment for Smarter Services such a Membership Plan. Gift Cards have no cash value and are not redeemable for cash unless otherwise required by law. Gift Cards must be presented (or the applicable identification number entered) at the time of payment and any available balance will be applied to your purchase. Gift Cards do not expire and there are no inactivity, dormancy or service fees associated with Gift Cards. You agree that you will comply with all Gift Card terms and conditions. Gift Cards are not replaceable if lost or stolen. Gift Cards cannot be used for previous purchases, credits, or the purchase of Gift Cards, and cannot be used to make a payment towards third party products or services, nor the balance on a credit card. We reserve the right to limit quantities of Gift Cards purchased by any person or entity and to cancel a Gift Card if we believe that the Gift Card was obtained through fraudulent or unauthorized means. No credit card, credit line, overdraft protection, or deposit account is associated with your Gift Card. Unused Gift Card balances are not transferable, and you may not sell a Gift Card or otherwise barter for its exchange although you may give a Gift Card to someone else as a gift. A Gift Card is void if copied, altered, transferred, purchased, sold or re-sold. Purchases of Gift Cards are final and not refundable. We reserve the right to correct the balance of a Gift Card if we believe that a billing error has occurred, and we disclaim all liability for any such billing errors. Gift Cards and their use are subject to these Terms contained here and use of a Gift Card constitutes acceptance thereof. Applicable terms and conditions are subject to change without notice. If the laws pertaining to a Gift Card require additional or different terms and conditions, then such terms and conditions shall apply. For questions or additional information, contact us at email@example.com. In the event you do not use your Gift Card for a certain period of time, we may be required to turn over the remaining Gift Card balance to a state under such state’s unclaimed or abandoned property law. Although your Gift Card does not expire, if we are obligated to turn over the remaining balance of your Gift Card under a state’s unclaimed property law, by operation of law we will be released from any further liability or obligation with respect to your Gift Card and you may be required to contact the state’s unclaimed property administrator to attempt to recover your unused Gift Card balance.
Payment Terms and Fees
Certain features of the Service, including, without limitation, subscribing to a membership or the placing or receipt of service orders, may require you to make certain payments, including commissions or other fees. Any fees that Smarter may charge you for your use of or access to the Service are due immediately when charged by Smarter and are non-refundable. This no refund policy shall apply at all times regardless of your decision to terminate your usage, our decision to terminate your usage, disruption caused to our Service either planned, accidental or intentional, or any reason whatsoever. Smarter reserves the right to determine and change any payment term, rate, mechanism, or structure at any time with notice to you. Smarter, in its sole discretion, may offer credits or refunds on a case-by-case basis.
Fees will be displayed in United States Dollars. By confirming your purchase at the end of the checkout process, you agree to accept and pay the fees as well as all applicable taxes and currency conversion fees.
Smarter may from time to time offer special promotions or offers. Promotional codes, discounts, and offers (“Promotions”) are limited in nature and may expire or be discontinued with or without notice. Promotions are void where prohibited by law. Promotions may not be copied, sold, or otherwise transferred. They are not redeemable for cash and are subject to cancellation or change at any time for any reason without notice. We reserve the right in our discretion to impose conditions on the offering of any Promotions. Other Promotions, including sweepstakes, contests, raffles, surveys, or games, may be governed by rules that are separate from or supplement these Terms. If you participate in any Promotions, please review the applicable rules. If the specific rules for a Promotion conflict with these Terms, the Promotion rules will govern.
Smarter may use third party services to process payments, such as, but not limited to Stripe, which have their own separate terms of service. While Smarter will use commercially reasonable efforts to ensure the security of all payment information such as credit cards or bank account numbers, Smarter expressly disclaims any liability for any damage that may result should any third parties gain access to such information, and you agree to hold Smarter harmless for any damages that may result therefrom.
You represent and warrant that you have the right to use any credit card or other means of payment that you provide to us that complies with our payment policies in effect at the time of payment. All billing information you provide to us must be current, complete, truthful, and accurate. You agree to promptly update your account and other information, including your email address and credit card numbers, and expiration dates, so that we can complete your transactions and contact you as needed. Providing any untruthful or inaccurate information is a breach of these Terms and may result in the cancellation of your order. Prior to accepting an order, we may also request additional information from you. Verification of information may be required prior to the acknowledgment or completion of any transaction. We reserve the right to refuse or cancel an order for any reason including limitations on availability, inaccuracies, or errors in service or pricing information, or problems identified by our credit and fraud avoidance department. If your order is canceled after your credit card (or other payment account) has been charged, we will issue a credit to your credit card (or other applicable payment account) in the amount of the charge. We may attempt to contact you if all or any portion of your order is canceled or if additional information is required to accept your order. Smarter may request a pre-authorization for some orders placed with a credit or debit card. This pre-authorization will not be billed to you; however, your card issuer may hold this amount for a period of time. Your card issuer determines the length of time the pre-authorization is held. We do this to ensure that the card details are still valid and that you have sufficient funds to complete the transaction. We are not responsible for any fees or charges that your bank or credit card issuer may apply.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
We accept various payment methods for Membership Plans and Services through our payment processor, including Mastercard, Visa, and American Express and PayPal. By using our Service, you agree to be bound by the terms and conditions of your payment method. Smarter will not fulfill any Membership Plan, Gift Card or Service without authorization and validation of your purchase from your payment method or a Smarter approved third-party.
When you purchase a Membership Plan or Service, we will place a hold on the credit card that you provide to us at the time of purchase, such hold in the amount of the anticipated charge for the applicable Plan or Service. Upon marking the Purchase as complete, such credit card will be charged if payment was not made via other means. You may change the payment method by emailing us at firstname.lastname@example.org or by calling us at 1-805-SOLVE-IT. Fees for cancellations and rescheduled visits, in accordance with our cancellation and rescheduling policies will be charged to the credit card provided at the time of scheduled visit.
In the event that Smarter is unable to successfully charge any linked payment instrument, Smarter will notify you via email and/or within your “Account” or “Membership” page, and you will be unable to initiate further orders or transactions with your Account. Upon Smarter’s notification to you of such failure, you agree to link a new, valid payment instrument as soon as possible but in any event within three (3) business days. Your Smarter Account may be disabled until a valid payment instrument is provided and the outstanding uncharged balance is resolved by Smarter. Smarter is not responsible for any charges imposed by the issuer of your payment instrument as a result of any failed charge by Smarter. To the extent that Smarter is unable to successfully charge any payment instrument linked to your Account as payment for authorized transactions for more than thirty (30) days, you understand and agree that Smarter may employ a collection agency or other business in an effort to collect any outstanding debts and fees associated with your User Account, and you will not contest the use of a third party to collect the debt and fees owed to Smarter. You agree that you will be responsible for any legal, court, arbitration or collection agency fees associated with rectifying your account and all monies owed thereunder. You agree that Smarter, or any agency or business employed by Smarter, has the right to contact you and your heirs via telephone, email, text message, fax, direct message or in-person using the information you provided upon registration or during any contact with Smarter, in an effort to collect any monies and fees owed under your account, whether specifically referenced in these Terms or not, and such contact may be made in a manual or automated fashion.
Restrictions and Conditions of Use:
Smarter permits you to view and use the Service solely for your own personal or limited commercial use, as applicable, in either case not inconsistent with the intended purpose of the Service. Furthermore, you agree that you will not:
(a) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service;
(b) sell, assign, rent, lease, act as a service bureau, or grant rights in the Service, including, without limitation, through sublicense, to any other person or entity without the prior written consent of Smarter;
(c) make any false, misleading or deceptive statement or representation regarding Smarter or the Service;
(d) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Service (or any servers, systems or networks connected to the Service) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Service or any other person’s or entity’s use of the Service (or any servers, systems or networks connected to the Service);
(e) attempt to gain unauthorized access to the Service, accounts registered to other Users, or any servers, systems or networks connected to the Service;
(f) use the Service for any commercial purpose unless consistent with these Terms and the intended use of the Service;
(g) use the Service to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful;
(h) use the Service to upload, post, e-mail or otherwise transmit any material that constitutes unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation or commercial electronic message;
(i) breach any agreements you enter into with any third parties;
(j) use the Service for any unlawful, prohibited, abnormal or unusual activity as determined by Smarter in its sole discretion;
(k) use the Service to engage in any activity that (i) constitutes harassment or a violation of privacy or threatens other people or groups of people; (ii) is harmful to children in any manner; (iii) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (iv) violates any applicable law, ordinance, rule, regulation, treaty or self-regulatory guidelines;
(l) improperly obtain or attempt to improperly obtain any information or data from the Service including, without limitation, email addresses or mobile phone numbers of other Users;
(m) intercept, examine or otherwise observe any proprietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; or
(n) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, any aspect of the Service.
No Sales to Children
Smarter does not sell its Service for or to children, but only to adults, who can purchase with a credit card or other permitted payment method. If you are under eighteen (18) years of age, you may use the Service only with involvement and consent of a parent or legal guardian.
Smarter may terminate or suspend your right to use the Service at any time and for any reason. Without limitation, Smarter may terminate or suspend your right to use the Service at its sole discretion, without refunding any unused fees or credit on your account, if you violate any term of this Agreement or any policy of Smarter posted on the Service, or if Smarter otherwise finds that you have engaged in unlawful or inappropriate behavior in connection with your use of the Service. In addition to terminating or suspending your account, Smarter reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. Even after your right to use the Service is terminated or suspended, this Agreement will remain enforceable against you regarding your prior use of the Service. Consent to Receive Transactional Calls and Messages
By providing your mobile number to us, you agree to be contacted by or on behalf of Smarter at the mobile number you have provided, including via phone call or text message, to receive transactional communications relating to the Service (such as to update on status of arrival, timing, and to confirm orders and use of the Service), and you recognize and acknowledge that text messaging is an inherently less secure of a method of communication and agree to receive text messages regardless of the level of security associated with them. Message and data rates may apply. For help regarding the communications, we exchange with you using your phone number, contact us directly.
Consent to receive marketing text messages, which are subject to separate consent terms, are not a condition of purchasing any of Smarter’s goods and services, and you are free to opt-out at any time of marketing text messages. If you would like to stop receiving marketing text messages, you may text the word STOP in reply to any text. Note that we may confirm your opt-out by text message. If you subscribe to multiple types of text messages from us, we may unsubscribe you from the Service that most recently sent you a message or respond to your STOP message by texting you a request to identify the Service(s) you wish to stop. Keep in mind that if you stop receiving marketing text messages from us, you may not receive important and helpful information and reminders.Copyright Complaints and DMCA Copyright Agency
Smarter complies with the copyright notice-and-takedown procedures set out in the United States Digital Millennium Copyright Act (DMCA), which applies to content reported and removed for violating U.S. copyrights. Please note that any notice or counter-notice you submit must be truthful and must be submitted under penalty of perjury. A false notice or counter-notice may give rise to personal liability. You may therefore want to seek the advice of legal counsel before submitting a notice or a counter-notice. We may share any notices and counter-notices submitted to us with others including your contact information, and by submitting any notices, you agree you have no expectation of privacy in your submission.
Content owners of copyrighted material or their representing agents may submit a DMCA notice to our registered Copyright Agent if they believe that infringing activity has taken place on our Service. The abuse team will only consider valid reports of infringement, and you may submit a complete DMCA notice that features all of the points described below only if the representing party sending the request is the content owner or the authorized agent acting on behalf of the copyright owner. If you are not sure if Smarter has control over the allegedly infringed content, please obtain legal representation before contacting us. To be effective under the DMCA, any notification of claimed infringement must be in a written communication that includes substantially the following which must include a certification made under penalty of perjury:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, as well as information sufficient for Smarter to determine the legitimacy of the signature and the identity of the signatory;
Identification of the copyrighted work claimed to have been infringed, or, if a single notification covers multiple copyrighted works at a single online site, a representative list of such works at that site, including citation to the applicable copyright registrations where available;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Smarter to locate the material, including a timestamp and visible identification of the material in a screenshot or comparable medium, with all metadata intact, as well as a hyperlink or URL to the website or online content at issue;
Information reasonably sufficient to permit Smarter to contact the complaining party, including an email address, telephone number, and, if available, physical mail address;
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Any such notifications of claimed infringement must be sent to the below contact with the subject line “DMCA NOTICE” via email to: email@example.com or via our notice address in the United States via mail to:
Attn: Smarter Copyright Agent
4821 Lankershim Blvd.
North Hollywood, CA 91601
Please note if any notification of claimed infringement does not meet the above requirements, Smarter has no responsibility to respond to or act on any such defective notification of claimed infringement.
If you receive a notification of claimed infringement, you may submit a counter-notification to us under the DMCA. It must include the following, which includes a certification made under penalty of perjury:
Your physical or electronic signature, as well as information sufficient for Smarter to determine the legitimacy of the signature and the identity of the signatory;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court (i) in the judicial district where your address is located if the address is in the United States, or (ii) located in the County of Los Angeles, CA, if your address is located outside the United States, and that you will accept service of process from the Complainant submitting the notice or the Complainant’s authorized agent.
Any such counter-notification must be sent to: firstname.lastname@example.org or via U.S. mail to our notice address at:
Attn: Smarter Copyright Agent
4821 Lankershim Blvd.
North Hollywood, CA 91601
Smarter reserves the right in its sole discretion to review, improve, modify, or discontinue, temporarily or permanently, the Service or any content or information on the Service with or without notice. Smarter will not be liable to any party for any modification or discontinuance of the Service, in part or in its entirety. Binding Arbitration of All Claims on an Individual Basis
You and Smarter agree that any and all disputes or claims that have arisen or may arise between you and Smarter that relate in any way to your participation in, use, or access of the Service, including but not limited to services provided by a Smarter Pal, or the actions of Smarter or its agents, shall be resolved through confidential, final and binding arbitration rather than in court, with the exception of any dispute relating to the enforcement or validity of intellectual property rights. The Federal Arbitration Act (“FAA”) governs the interpretation and enforcement of this Agreement to arbitrate.
If a dispute arises between you and Smarter, we want to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly. Please contact us regarding disputes between you and Smarter related to the Service.
UNLESS YOU AND SMARTER AGREE OTHERWISE, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE ACTION, OR PRIVATE ATTORNEY GENERAL PROCEEDING. ALSO, TO THE EXTENT AVAILABLE BY LAW, AND SUBJECT TO THE DAMAGE LIMITATIONS DISCUSSED HEREIN, THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR, AND FOR THE BENEFIT OF, THE INDIVIDUAL PARTY SEEKING RELIEF. If a court decides that any part of this agreement to arbitrate is invalid or unenforceable, the other parts of this Section shall still apply. Specifically, if a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim or a particular request for a remedy (such as a request for public injunctive relief), then that claim or that remedy request (and only that claim or that remedy request) may be severed from the arbitration and may be brought in court, subject to your and Smarter’s right to appeal the court’s decision. All other claims shall be arbitrated.
The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and held in Los Angeles County, California or another mutually agreed location. The arbitrator’s award shall be confidential, final, and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Payment of all filing, administration and arbitrator fees will be governed by the JAMS’s rules which can be found online through the JAMS website at https://www.jamsadr.com.Governing Law and Venue
This Agreement will be governed, construed, and enforced under the laws of the State of California, without regard to choice of law principles. Any action arising under or related to this Agreement shall be filed in a state or federal court located in Los Angeles County, California (except for small claims court actions which may be brought in the county where you reside). You hereby submit to the jurisdiction and venue of said courts and consent to service of process by email in any legal proceeding. Severability
You and Smarter agree that if any portion of these Terms is found illegal or unenforceable, that portion will be construed to be enforceable to the maximum extent permitted by law and the remainder of the Terms will remain valid and enforceable to the maximum extent permitted by law. No Agency
No independent contractor, agency, partnership, joint venture, employer-employee, or franchisor-franchisee relationship is intended or created by these Terms.
The various headings of this Amendment are included for convenience only and shall, in no way, affect the meaning or interpretation of this Agreement or any provision hereof or thereof nor alter, modify, amend, limit, or restrict the contractual obligations of the parties.
Smarter’s Contract, Invoice, Purchase, Payments, Work Order, and the Terms contained here shall be binding upon and shall inure to the benefit of Smarter and its respective successors and permitted assigns.
If you have any questions regarding these Terms or otherwise need to contact us, please email us at email@example.com, via telephone at (844) 339-4706 or via U.S. mail to our notice address at:
4821 Lankershim Blvd.
North Hollywood, CA 91601
Accepted and agreed to on the day that you use and/or accept the Service.