Terms of Use

Last update: March 14, 2022

BEFORE USING THIS WEBSITE, PLEASE READ THESE TERMS OF USE CAREFULLY. Smart Tools Plus, LLC (together with our affiliates, “SmartTools”, “we”, or “us”) sells products designed to improve the lives of patients and athletes. This Terms of Use Agreement (the “Terms”) apply to your access and use of the SmartTools Service, which is provided to you by SmartTools. The “SmartTools Service” includes our equipment and devices, including associated firmware, applications, software, websites, APIs, products, and services. By accessing or using any part of the SmartTools Service, including by downloading our mobile application onto your mobile device or tablet, you signify that you have read, understand and agree to be bound by these Terms and any other applicable law. SmartTools may change these Terms at any time without notice, effective upon its posting to the Service. Your continued use of the Service shall be considered your acceptance to the revised Terms. If you do not agree to these Terms, you may not use our Service or this website. THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER (UNDER ARBITRATION CLAUSE AND CLASS ACTION WAIVER). PLEASE READ THIS CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED BELOW, BY ENTERING INTO THESE TERMS YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND SMARTTOOLS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

Who May Use the SmartTools Service

You must be at least 18 years old (or are at least 15 years old and have your parent or legal guardian’s consent) to register with and use the SmartTools Service. We may, in our sole discretion, refuse to offer the SmartTools Service to any person or entity and change the eligibility criteria at any time. You are solely responsible for ensuring that you comply with all applicable laws, rules and regulations related to these Terms, and the right to access and use the SmartTools Service is revoked where these Terms or use of the SmartTools Service is prohibited or conflicts with any applicable law, rule or regulation. 

License to Use the SmartTools Services

Subject to your compliance with these Terms, SmartTools grants you a limited, non-exclusive, non-transferable, revocable license to (1) access and use the SmartTools Service, (2) access and view the photos, images, graphics, video, audio, data, text, music, exercise regimens, food logs, recipes, comments, software, works of authorship of any kind, and other information, content, or other materials that are posted, generated, provided, or otherwise made available through the SmartTools Service (“SmartTools Content”), (3) access and use the software and mobile applications provided by the SmartTools Service, and (4) use the software that is embedded into SmartTools wearable devices as authorized in these Terms. This license is provided solely for non-commercial use as permitted in these Terms.

You may only connect to the SmartTools Service using (i) equipment and wearable devices that are manufactured, distributed, or sold by SmartTools itself or through its authorized resellers or agents (“SmartTools Devices”); and/or (ii) our mobile applications, website and software. You may not connect to the SmartTools Service with any SmartTools Devices that are not manufactured, distributed, or sold by SmartTools itself or through its authorized resellers or agents (such as a knock off or counterfeit version of a SmartTools device); otherwise intends to resemble or purports to be a SmartTools Device; or any unauthorized application or third-party connection. Any violation or attempted violation of this provision may result in the immediate termination of your ability to access the SmartTools Service.

Necessary Equipment

Full use of the SmartTools Service is dependent upon your use of a computer with adequate software or a supported mobile device and Internet access. The maintenance and security of this equipment may influence the performance of the SmartTools Service and it is your responsibility to ensure the equipment’s functionality.

Restrictions

You will not use, sublicense, copy, adapt, modify, translate, disclose, prepare derivative works based upon, distribute, license, sell, rent, lease, assign, transfer, publicly display, publicly perform, transmit, broadcast, or otherwise exploit the SmartTools Content, SmartTools Service or any portion thereof, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by SmartTools or its licensors, except for the licenses and rights expressly granted in these Terms.

Except to the extent permitted by law, you may not perform, attempt to perform, or encourage or assist others in performing any of the following while accessing or using the SmartTools Service: (1) use, display, mirror, or frame the SmartTools Service or any individual element within the SmartTools Service, including the layout and design of any page, without SmartTools’ express written consent; (2) use SmartTools’ name, any SmartTools trademark or logo, or any SmartTools proprietary information without SmartTools’ express written consent; (3) access or tamper with non-public areas of the SmartTools Service, SmartTools’ computer systems, or the technical delivery systems of SmartTools’ providers; (4) test the vulnerability of any SmartTools systems or breach any security or authentication measures; (5) circumvent any technological measure implemented by SmartTools or any of SmartTools’ providers or any other third party (including another user) to protect the SmartTools Service; (6) access the SmartTools Service or SmartTools Content through the use of any mechanism other than as described in these Terms; or (7) modify, decompile, disassemble, reverse engineer, tamper with, or otherwise attempt to derive the source code of any software that SmartTools provides to you or any other part of the SmartTools Service.

Submissions by Users and User Generated Content

While using our mobile application, you will have the opportunity to register with our Service and/or post data, photos and information about you and your use of our products. In addition, you may submit comments and reviews regarding the website, our products and/or our Service on our website. Furthermore, certain activities of the website, including occasional contests, promotions or solicitations of users, will solicit and encourage the submission and/or uploading of materials from users. Any user content submitted to our Service, including but not limited to any comments, feedback, reviews, notes, messages, ideas, suggestions, photographs, images, data, (including metadata attached to any images), responses to contests, promotions or other requests for materials and all other communications and content sent to us or through our Service (“UGC”), remains your sole responsibility and property. Furthermore, by submitting any UGC by uploading it directly to our website or public areas of our mobile application (“Uploaded UGC”), you hereby grant to SmartTools a perpetual, worldwide, irrevocable, unrestricted, nonexclusive, royalty-free right and license to use, copy, display, license, sublicense, adapt, distribute, publicly perform, publish, transmit, modify, edit, translate, and otherwise exploit such Uploaded UGC in all media now known or hereafter developed without further notice or compensation to you or authorization from you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your UGC. You further grant all users of the SmartTools Services permission to view your UGC for their personal, non-commercial purpose.

You represent that all UGC submitted by or on behalf of you is accurate, complete, up-to-date, and in compliance with these Terms and all applicable laws, rules and regulations. You acknowledge that all content, including UGC, accessed by you using the SmartTools Service is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We make no representations, warranties or guarantees with respect to any content that you access on or through the SmartTools Service. By posting UGC on the Service, you warrant that you have the right to submit the UGC to SmartTools and grant the licenses set out above.

Account Security

You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You must safeguard the confidentiality of your password, and if you are using a device that others have access to, log out of your account after using the SmartTools Service. If you become aware of any unauthorized access to your account, change your password and notify us immediately at info@smarttoolsplus.com.

Posting Rules

You are solely responsible for your UGC, your interactions with other users and your activity on the Services. Do not take any action or post anything that may expose SmartTools or its users to any harm or liability of any type.

You expressly acknowledge and agree that you are responsible for ensuring that any UGC that you post does not, and will not, infringe or violate anyone else’s rights, including copyright, patent, privacy, publicity, trade secret, trademark, or other personal or proprietary rights. You agree not to submit UGC unless you are the owner or have written permission from the owner to post such UGC.

Do not misrepresent yourself, your age or your affiliation with any person or entity. Do not post any material on the website which has been disclosed to you in confidence or which, by its nature, is confidential. Do not post any material on the website which compromises the privacy or security of anyone, including yourself. Do not impersonate any person or entity, including without limitation athletes or SmartTools employees. Do not post any UGC that promotes fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures.

Any reviews or content submitted by users in any pages of the website are provided for your private and non-commercial use and for the exchange of appropriate, fair, lawful, and relevant information, opinions and comment. Use of the Service that is inconsistent with those stated purposes is strictly prohibited.

Do not post UGC, or a link to other content, that is abusive; deceptive; defamatory; false; fraudulent; harassing; harmful; hateful; illegal; inaccurate; indecent; inflammatory; infringing; insulting; intimidating; invasive of privacy, publicity, intellectual property, proprietary or contractual rights; libelous; malicious; misleading; obscene; offensive in a sexual, racial, cultural, ethnic or any other context; pornographic; sexually explicit; threatening; violent; vulgar; will harm or threaten the safety of others; exploits minors; depicts animal cruelty or extreme violence towards animals; or that is otherwise objectionable (“Offensive Content”). Do not place any links on the website where those links take users to unlawful material or material that violates these Terms. You acknowledge and agree that SmartTools shall have sole discretion to determine what constitutes Offensive Content.

Do not collect, use or post on the Service the personal information of anyone else without their consent or for illegal purposes. Do not collect personal information from other users of the Service. Do not use automated scripts to collect information from, or otherwise interact with, the Services. Do not “stalk,” intimidate, abuse, harm or harass another user of our Service or this website. Do not advertise or solicit others to purchase any product or service. Do not post any UGC, take any action or use the Services in a way that violates any law, would create liability or promotes illegal activities.

You agree not to take any action designed to interfere, disrupt, damage, disable, overburden or limit the functionality of our website or the Service. Do not post UGC that contains software viruses, programs or other computer code. Do not circumvent or modify any Services security technology or software. Downloading and/or installing any third party software and/or applications that are not expressly authorized by SmartTools on any SmartTools hardware is strictly forbidden; any such downloading or installation is done at your own risk and will void any applicable warranty or support commitments by SmartTools.

Prescreening UGC

SmartTools has the right, but not the obligation, to prescreen all conduct on and content submitted to the SmartTools Service. SmartTools does not guarantee the Service will be free from UGC that is inaccurate, deceptive, offensive, threatening, defamatory, unlawful or otherwise objectionable. SmartTools reserves the right to edit, remove, or refuse to post any UGC for any reason, in SmartTools’ sole discretion or to satisfy or comply with applicable laws, regulations, legal processes and/or maintain the integrity and reputation of the SmartTools Service.

Alerts and Notifications

As part of your use of the SmartTools Service, you may receive notifications, text messages, alerts, emails, and other electronic communications. You agree to the receipt of these communications. You may opt-out of receiving marketing information at any time: such marketing emails tell you how to “opt-out.” Please note, even if you opt out of receiving marketing emails, we may still send you non-marketing emails. Non-marketing emails include emails about your account with us (if you have one) and our business dealings with you. We may need to provide you with certain communications, such as service announcements and administrative messages. You are responsible for any messaging or data fees you may be charged by your wireless carrier. Any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that the communication be in writing.

Sale of Products

SmartTools accepts orders for the SmartTools Devices and any other products or services sold by SmartTools. Unfortunately, availability of products cannot be guaranteed. Unless otherwise specified at the time of purchase, you must pay for products when you place the order. All products ordered will be delivered to the shipping address you provide. We may cancel an order placed by you at any time and for any lawful reason prior to our delivery of the product(s) and receipt of payment in full from you, provided that we will refund any fees that you prepaid for those products. We may send an acknowledgment of receipt of your order and/or proof of purchase information through the SmartTools Service or to your email address after your payment has been processed. All orders placed through the Service are subject to SmartTools’ acceptance. This means that SmartTools may refuse to accept or may cancel any order, whether or not the order has been confirmed, for any or no reason, and without liability to you or anyone else. If your credit card has already been charged for an order that is later canceled, SmartTools will issue you a refund. Please see our Warranty and Return Policy for further information about the SmartTools products.

Intellectual Property

You acknowledge that the SmartTools Service contains software and other content that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, including the SmartTools Content, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All SmartTools Content, and content provided to SmartTools by our partners and licensors, is copyrighted individually and/or as a collective work under the U.S. copyright laws; further, as between you and SmartTools, SmartTools owns a copyright in the selection, coordination, arrangement and enhancement of all content in the SmartTools Service. Subject to your compliance with these Terms, and solely for so long as you are permitted by us to access and use the SmartTools Service, SmartTools hereby grants you a limited, revocable, non-exclusive, non-transferable right and license to access and use the content made available on the SmartTools Service for your personal, non-commercial use of the SmartTools Service and for no other purpose whatsoever. Unless otherwise specified, copying or modifying any content or using content for any purpose other than your personal, non-commercial use of the SmartTools Service, including use of any such content on any other website or networked computer environment, is strictly prohibited.

The SmartTools name, logos and affiliated properties, designs and marks are the exclusive property of SmartTools and/or our affiliates, whether registered or unregistered, and may not be used in connection with any product or service that is not ours, or in any manner that is likely to cause confusion as to our endorsement, affiliation or sponsorship of any person, product or service. Nothing contained in the SmartTools Service should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or other intellectual property without our express prior written consent.

Any other trademarks appearing on the SmartTools Service are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content that they make available through the SmartTools Service. All rights not expressly granted in these Terms are reserved.

Notification of Copyright Infringement

If you believe that your proprietary work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on this website, please provide SmartTools with a written notice of the same (“Notice”). Such Notice should be provided only if you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on our website. Your Notice of copyright infringement must include the following information required by the Digital Millennium Copyright Act, 17 U.S.C. 512:

1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; 2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; 3. 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 us to locate the material; 4. Information reasonably sufficient to permit us to contact the complaining party; 5. 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 6. 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.
   Please send your Notice to:

Smart Tools Plus, LLC, 20636 Castlemaine Circle, Strongsville, OH 44149, or via email: info@smarttoolsplus.com.

Third Party Links

These SmartTools Services may contain links to other websites or services that are provided solely as a convenience to users and not as an endorsement by SmartTools of any third party products, services or any other websites. SmartTools shall not be responsible for the content of any other websites or services. SmartTools makes no representation or warranty regarding any other websites or the contents or materials on such websites. If you decide to access other websites or services, you do so at your own risk.

Indemnification

You agree to indemnify, defend, and hold harmless Smart Tools Plus, LLC, its affiliates, officers, directors, employees, agents, licensors and suppliers from and against all claims, losses, liabilities, expenses, damages and costs, including, without limitation, attorneys’ fees, arising from or relating in any way to your UGC, your use of Content, your use of the Service and our products, your conduct in connection with the Service or with other users of our Service and this website, or any violation of these Terms, any law, or the rights of any third party.

Privacy

The collection and use of information through our website or these Services is further described in our Privacy Policy, which is incorporated into these Terms by reference.

User Interaction Disclaimer

SmartTools is not responsible or liable for any loss or damage resulting from any interaction with other Service users, persons you meet through the Service or persons who find you because of information posted on, by or through the Service. You agree to take reasonable precautions in all interactions with other users on the Service. SmartTools is under no obligation to become involved with any user dispute, but may do so at its own discretion.

Warranty Disclaimers

SMARTTOOLS IS NOT RESPONSIBLE OR LIABLE FOR ANY UGC OR OTHER CONTENT POSTED ON OUR WEBSITE OR AVAILABLE THROUGH THE SMARTTOOLS SERVICE OR FOR ANY OFFENSIVE, UNLAWFUL OR OBJECTIONABLE CONTENT YOU MAY ENCOUNTER ON OR THROUGH THE SMARTTOOLS SERVICE. SUBJECT TO OUR LIMITED PRODUCT WARRANTY, THE SMARTTOOLS SERVICE, UGC, CONTENT, AND THE MATERIALS AND PRODUCTS AVAILABLE THROUGH THIS WEBSITE AND THE SMARTTOOLS SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, SMARTTOOLS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SMARTTOOLS CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM THE SMARTTOOLS CONTENT OR USE OF THE SMARTTOOLS SERVICE. SMARTTOOLS DOES NOT REPRESENT OR WARRANT THAT THE SMARTTOOLS SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE SMARTTOOLS SERVICE OR THE SERVERS THAT MAKE THE SMARTTOOLS SERVICE AVAILABLE ARE FREE OF VIRUSES OR ANYTHING ELSE HARMFUL. TO THE FULLEST EXTENT PERMITTED BY LAW, SMARTTOOLS DOES NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE UGC OR SMARTTOOLS CONTENT AVAILABLE THROUGH OUR WEBSITE OR THE SMARTTOOLS SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, RELIABILITY OR OTHERWISE. YOU UNDERSTAND AND AGREE THAT YOU USE THE UGC OR SMARTTOOLS CONTENT AT YOUR OWN RISK, AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE AND ANY DAMAGE TO ANY DEVICE USED TO ACCESS THIS WEBSITE AND/OR THE SMARTTOOLS SERVICE, INCLUDING ANY LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT. SMARTTOOLS RESERVES THE RIGHT TO CHANGE ANY AND ALL CONTENT AND OTHER ITEMS USED OR CONTAINED IN THE SERVICE AT ANY TIME WITHOUT NOTICE. SOME STATES DO NOT PERMIT LIMITATIONS OR EXCLUSIONS ON WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Professional Advice Disclaimer

THE SMARTTOOLS SERVICE OFFERS HEALTH AND FITNESS RELATED CONTENT OR INFORMATION THAT IS DESIGNED FOR EDUCATIONAL PURPOSES ONLY. YOU SHOULD NOT RELY ON INFORMATION AVAILABLE IN OR VIA THE SMARTTOOLS SERVICE AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTHCARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF INFORMATION AVAILABLE ON THE SMARTTOOLS SERVICE. THE USE OF INFORMATION PROVIDED THROUGH THE SMARTTOOLS SERVICE IS SOLELY AT YOUR OWN RISK.

THE SMARTTOOLS SERVICE IS NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE. NOTHING STATED OR POSTED ON THE SMARTTOOLS SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. THE SMARTTOOLS SERVICE IS CONTINUALLY UNDER DEVELOPMENT AND SMARTTOOLS MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH AND FITNESS RELATED ADVICE THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE SMARTTOOLS SERVICE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL. Limitation of Liability SMARTTOOLS SHALL NOT BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA, THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THIS SERVICE OR THE PERFORMANCE OF THE PRODUCTS PURCHASED THROUGH THIS WEBSITE OR THIS SERVICE OR THE CONDUCT OF OTHER USERS OF THIS WEBSITE OR OUR SERVICE (WHETHER ONLINE OR OFFLINE) OR ATTENDANCE AT A SMARTTOOLS EVENT OR ANY UGC, EVEN IF SMARTTOOLS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE PLATFORM. YOUR ONLY REMEDY AGAINST SMARTTOOLS FOR USE OF THE PLATFORM OR ANY CONTENT IS TO STOP USING THE PLATFORM. THAT SAID, IF SMARTTOOLS IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH IS IN ANY WAY CONNECTED WITH YOUR USE OF THIS WEBSITE OR OUR SERVICE, SMARTTOOLS’ LIABILITY SHALL NOT EXCEED US $100.00. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

Arbitration Clause & Class Action Waiver – Important – Please Review as this Affects Your Legal Rights

Arbitration. YOU AND WE AGREE THAT ALL DISPUTES BETWEEN YOU AND US OR OUR OFFICERS, DIRECTORS OR EMPLOYEES IN THEIR CAPACITY AS SUCH (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS, YOUR USE OF THE SMARTTOOLS SERVICE, AND/OR RIGHTS OF PRIVACY OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE JAMS, INC. (“JAMS”) RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES IN EFFECT AT THE TIME OF DISPUTE, AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT EITHER PARTY MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE EQUITABLE RELIEF IN ANY U.S. COURT HAVING JURISDICTION TO PROTECT AGAINST AN INFRINGEMENT OR MISAPPROPRIATION OF THAT PARTY’S INTELLECTUAL PROPERTY RIGHTS. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.

Small Claims Court. As an alternative, you or we may bring a claim in your local “small claims” court, if permitted by that small claims court’s rules and within such court’s jurisdiction, unless the action is transferred, removed or appealed to a different court. You may bring such claims only on your own behalf.

Class Action Waiver. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLAIM YOU MAY HAVE AGAINST US, INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision is governed by the Federal Arbitration Act and not by any state law concerning arbitration. If JAMS is unwilling or unable to set a hearing date within 160 days of filing, then either we or you can elect to have the arbitration administered instead by the American Arbitration Association. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.

Time Limitation. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with your relationship with us, including the use of the SmartTools Service or these Terms, must be filed within one year after such claim or cause of action arose or be forever banned.

Opt-Out. If you do not wish to be bound by the arbitration and class action waiver provisions in this Section, you must notify us in writing within 30 days of the date that you first use the SmartTools Service or 30 days from the date this Section was last updated (unless a longer period is required by applicable law). Your written notification must include your name and mailing address, your username and the email address you used to set up your SmartTools account (if you have one), and a statement that you do not wish to resolve disputes with us through arbitration and demonstrating compliance with the 30-day time limit to opt out. You must mail your opt-out notice to this address: Smart Tools Plus, LLC, Attn: Dispute Resolution Opt-out, 20636 Castlemaine Circle, Strongsville, OH 44149. If you do not notify us in accordance with this Section, you agree to be bound by the arbitration and class-action waiver provisions set out above, including any revisions we make to these Terms after the date of your acceptance. If we make any changes to this Section (other than a change to the address at which we will receive notices), you may reject the change by sending us written notice to the above address within 30 days of the effective date of the change. Any opt-out notice affects only these Terms and not any other agreements between you and us.

Fees. Your arbitration fees will be limited to those fees set forth in the JAMS Rules for Arbitration of Consumer-Related Disputes with the remainder paid by SmartTools.

Survival. This Section will survive the termination of your relationship with us. If any of the prohibitions against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable under applicable law, then such provisions will be null and void and severed from these Terms.

Governing Law

These Terms will be governed by the laws of the state of Ohio, United States of America, without regard to principles of conflicts of law that would require a different result. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods will not apply. Subject to the foregoing agreements under “Arbitration Clause & Class Action Waiver,” any other action arising out of or relating to these Terms or your use of the SmartTools Service must be commenced in the state or federal courts located in Cuyahoga County, Ohio, United States of America, and you consent to the jurisdiction of those courts.

Miscellaneous

By using the Service, you agree to receive certain electronic communications from SmartTools. You agree that any notice, agreement, disclosure or other communication that SmartTools sends you electronically will satisfy any legal communication requirements, including that such communications be in writing. SmartTools’ failure to insist upon or enforce strict performance of any of these Terms shall not be considered a waiver of any provision or right. If any provision in these Terms is held invalid or unenforceable by any court of competent jurisdiction, the remainder of these Terms shall continue to be enforceable. Neither the course of conduct between the parties nor trade practice shall modify any of these Terms. SmartTools may assign its rights and duties under these Terms to any party at any time without notice to you. You may not assign or transfer these Terms without SmartTools’ prior written consent. No third party has any rights hereunder.

Termination

SmartTools reserves the right in its sole discretion to delete any of your UGC and restrict your use of all or any part of the Service for any or no reason, without notice, and without liability to you or anyone else. SmartTools also reserves the right to block users from certain IP addresses or Device numbers and prevent access to the Service. You understand and agree that some of your UGC, such as that which is displayed outside your profile, in activity feeds, in other parts of the Service, or on other platforms (e.g., Facebook, Twitter, Google, etc), may continue to appear on the Service or on other platforms even after your UGC is removed or your account is terminated. These Terms remain in effect even after your UGC is deleted. The Terms relating to Submissions by Users and User Generated Content, Intellectual Property, Indemnification, User Interaction Disclaimer, Professional Advice Disclaimer, Limitation of Liability, Arbitration Clause & Class Action Waiver, Governing Law, Miscellaneous, Termination, Notices, and Entire Agreement shall survive any termination.

Notices

You consent to receive all communications including notices, agreements, disclosures, or other information from SmartTools electronically. SmartTools may communicate by email or by posting to the SmartTools Service. For support-related inquiries, you may contact: info@smarttoolsplus.com.

 

Nothing in these Terms or otherwise limits SmartTools’ right to object to subpoenas, claims, or other demands.

Entire Agreement

These Terms incorporate the following legal documents by reference, as well as any other policies or procedures referenced herein that are posted to the SmartTools Service from time to time:

• Product Warranty
• Return, Exchange, and Repair Policy

If there is a conflict between any policies posted on the SmartTools Service and these Terms, these Terms will control. These Terms represent the entire understanding between SmartTools and you and supersedes all prior agreements and understandings regarding the same.