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Terms and Conditions

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1. User Agreement

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1.1. These Terms of Service (these “Terms”) constitute an agreement between you and SmartE Co. that governs your use of smarteboxes.com (the “Site”) as well as your purchase and use of any products, services or subscriptions available on the Site (the “Services”). The terms “SmartE Box”, “SmartE Boxes”, “Company”, “we”, or “us” refer to SmartE Co. The term “you” refers to the individual or legal entity, as applicable, identified as the user when you registered for the Services.

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1.2. BY USING THE SITE OR SERVICES, YOU ACKNOWLEDGE AND REPRESENT THAT (i) YOU HAVE READ THESE TERMS, (ii) UNDERSTAND THEM, (iii) AGREE TO BE BOUND BY THEM, AND (iv) YOU ARE LEAST 18 YEARS OLD. NOTE THAT YOU MAY NOT USE THE SITE OR SERVICES UNLESS YOUR ARE AT LEAST 18 YEARS OLD. IF YOU DO NOT AGREE TO ANY OF THE TERMS BELOW, WE ARE UNWILLING TO GRANT YOU ACCESS TO THE SITE OR THE SERVICES. ACCESS TO OUR ONLINE SERVICES AND TOOLS.

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1.3. THESE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS, AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THESE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

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2. Account, Content, Ownership and Maintenance

 

2.1. In order to use some features of the Services, you will need to register with SmartE Boxes and create an account (“Account”). Creating an Account is optional, but without an account you may not be able to access all features available through the Services. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; and (b) you will maintain the accuracy of such information. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.

 

2.2. Subject to these Terms, we grant you a limited, non-exclusive, nontransferable personal license to (a) access and use the Site and Services and (b) download, install and operate any software (in object code form only), scripts and other content that we may from time to time have specifically identified within the Site as available for download (“Downloadable Tools”) (if any).  The Downloadable Tools are deemed part of the “Service”.  Your use of any Downloadable Tools may be subject to additional terms and conditions that accompany such Downloadable Tools.

 

2.3. The rights granted to you by these Terms will remain in force only for so long as these Terms remain in effect.  You may not rent, transfer, assign, commercially exploit, resell or sublicense access to the Service to any third-party. You may use the Site and the Services (including the Downloadable Tools) only for your personal, non-commercial purposes.  You further agree not to combine or integrate the Site and the Services (including the Downloadable Tools) with hardware, software or other technology or materials not provided by us.  You may not modify or create any derivative product based on the Site, the Site and the Services (including the Downloadable Tools).  You may not decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Site and the Services (including the Downloadable Tools) is compiled or interpreted, and nothing in these Terms should be interpreted as granting you any right to obtain or use source code.  Except as expressly stated herein, no part of the Site or Services (including the Downloadable Tools) may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means.  Any future release, update, or other addition to functionality of the Site or Services shall be subject to these Terms. You agree not to use the Site and the Services (including the Downloadable Tools) to: (a) violate any local, state, national or international law; (b) stalk, harass or harm another individual; (c) collect or store personal data about other users; (d) impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or (e) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services.  Without our written consent, you may not (i) use any high volume, automated, or electronic means to access the Services (including, without limitation, robots, spiders or scripts); or (ii) frame the Site, place pop-up windows over its pages, or otherwise affect the display of its pages.  You promise that any information about yourself that you voluntarily provide to us will be true, accurate, complete and current

 

2.4. You may not use another person’s SmartE Boxes account.

 

2.5. You may be able to access websites, content, products or services provided by third-parties through links that are made available on the Site. We refer to all such websites, content, services and products as “Third-Party Offerings.” For example, we may permit third parties to advertise their products and services on the Site, and those advertisements may contain links to the website(s) of the advertisers. If you elect to use such Third-Party Offerings, you understand that your use of them will be subject to any terms and conditions required by the applicable third-party provider(s). You understand that we are not the provider of, and are not responsible for, any such Third-Party Offerings and that these Terms do not themselves grant you any rights to access, use or purchase any Third-Party Offerings.

 

2.6. Ownership As between you and us, we and/or our vendors and suppliers, as applicable, retain all right, title and interest in and to the Site and the Service (including the Downloadable Tools), and all related intellectual property rights, other than User Content. Company and its suppliers reserve all rights not granted in these Terms. Unless you first obtain the copyright owner’s prior written consent, you may not copy, distribute, publicly perform, publicly display, digitally perform (in the case of sound recordings), or create derivative works from any copyrighted work made available or accessible via the Site or the Services. If you provide Company any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to Company all rights in the Feedback and agree that Company shall have the right to use such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary. Copyright © 2020, SmartE Co. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Site or Service are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.

 

2.7. “User Content” means any and all information and content that a user submits to, or uses with, the Site or Services (e.g., content in the user’s profile, photographs, or other postings). You are solely responsible for your User Content and assume all risks associated with use of your User Content. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Content (and not Company), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Company is not obligated to backup any User Content and User Content may be deleted at anytime. You are solely responsible for creating backup copies of your User Content if you desire.

 

You hereby grant, and you represent and warrant that you have the right to grant, to Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license and authorization to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content (including your and/or your child’s name, voice, photograph, and likeness) and to grant sublicenses of the foregoing, for the purposes of including your User Content in the Site, Services, Company’s other products and services, and Company’s marketing materials or endorsements. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.

The following sets forth Company’s “Acceptable Use Policy”: You agree not to use the Site or Services to collect, upload, transmit, display, or distribute any User Content:

(i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;

(ii) that is unlawful, harassing, abusive, tortious, intimidating, threatening, harmful, invasive of another’s privacy, whether that person is a Company user or not;

(iii) that is vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, sexually explicit, graphically violent, obscene, patently offensive, promotes racism, bigotry, discrimination, hatred, or physical harm or violence of any kind against any group or individual or is otherwise objectionable;

(iv) that is harmful to minors in any way;

(v) that provides instructions on how to commit illegal activities or obtain illegal products;

(vi) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party;

(vii) that constitutes a computer virus, worm, or any software intended to damage or alter a computer system or data; or

(viii) that asks any other user for personally identifying information, contact information or passwords; or

(ix) that exposes any person’s personally identifying information, contact information, or passwords;

(x) that constitutes unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise.

 

We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such acts may include removing or modifying your User Content, terminating your Company Account, and/or reporting you to law enforcement authorities.

 

Each Site or Service user is solely responsible for any and all of its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other Site or Service users are solely between you and such user. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site or Service user, we are under no obligation to become involved.

You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Site or Service users.

 

IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

 

You agree not to use the Services in any way intended to disrupt the Services, gain unauthorized access to the Services, or interfere with any other user’s ability to use the Services. Prohibited activities include, but are not limited to:

  1. Posting content deliberately designed to crash the SmartE Boxes website or editor;

  2. Linking to pages containing viruses or malware;

  3. Using administrator passwords or pretending to be an administrator;

  4. Repeatedly posting the same material, or “spamming.”

 

3. Fees and Subscription Services

 

3.1. Fees for all Services, including any subscriptions, are posted on the Site. We reserve the right to adjust pricing for our Services at any time. You agree to pay all fees for the Services that you purchase and you hereby authorize Company to charge you for all applicable fees using your selected method of payment. All information that you provide to us or our third-party payment processor must be accurate, current, and complete. All fees exclude, and you shall be responsible for, all sales, use, excise, and other taxes applicable to the transactions contemplated by these Terms. All fees are non-refundable.

 

3.2. BY PURCHASING ANY SUBSCRIPTION, YOU ACKNOWLEDGE THAT YOUR SUBSCRIPTION HAS AN INITIAL AND RECURRING PAYMENT FEATURE AND YOU ACCEPT RESPONSIBILITY FOR ALL RECURRING CHARGES PRIOR TO CANCELLATION OF THE AUTO-RENEWAL OF YOUR SUBSCRIPTION AND YOU ACKNOWLEDGE THAT YOUR SUBSCRIPTION WILL BE AUTOMATICALLY EXTENDED FOR SUCCESSIVE PERIODS.

 

3.3. To cancel the automatic renewal of your subscription at any time, you must do one of the following: update your subscription user account at smarteboxes.com or email the Company support team at cancel@smarteboxes.com.

 

3.4. Your renewal date will be the anniversary of your sign-up date after your initial term ends. If you cancel the automatic renewal of your subscription, you may use your subscription until the end of your then-current subscription term. Company may submit periodic charges (e.g., monthly) without further authorization from you, until you provide prior notice that you have terminated this authorization or wish to change your payment method within the 48-hour notice requirement. If you cancel the automatic renewal of your subscription, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. If Company does not receive payment for a renewal prior to the date of renewal, Company may, in its discretion, do one or more of the following: (i) demand full payment, (ii) charge any form of payment you have obtained to replace your provided form of payment (e.g., you have obtained a replacement credit card number), and you hereby authorize Company to do so, and (iii) terminate or suspend your subscription.

 

4. Shipping Terms

 

4.1. All shipments made as part of the Services will be shipped with shipping method selected by SmartE Boxes. Any delivery dates provided by SmartE Boxes are estimates. SmartE Boxes reserves the right to make deliveries in installments.

 

4.2. Any shipments made as part of the Services will be shipped by a third-party carrier. As a result, title and risk of loss for such shipments will pass to you upon our delivery to the carrier.

 

4.2. We do not allow returns or substitutions of shipments to SmartE Boxes. All sales are final.

 

4.3. If you receive a damaged or incomplete shipment, or if you are otherwise unhappy with any shipment, please contact us. We must receive notice of a damaged or incomplete shipment within two (2) weeks of receipt (as shown on by our common carrier’s shipping information). Any refunds or replacements are made solely in our discretion.

 

6. User-Generated Content and Licensing

 

6.1. For the purposes of these Terms, “User-Generated Content” means any code, apps, projects, comments, forum posts, or other content that a user submits to the Services.

 

6.2. SmartE Boxes encourages everyone to foster creativity by freely sharing code, art, music, and other works. However, we also understand the need for individuals and companies to protect their intellectual property rights. You are responsible for making sure you have the necessary rights, licenses, or permission for any User-Generated Content you submit to SmartE Boxes.

 

6.3. All User-Generated Content you submit to SmartE Boxes is licensed to and through SmartE Boxes under the Creative Commons Attribution-ShareAlike 2.0 license and you hereby grant to SmartE Boxes and our users a license to all of your User Generated Content subject to the terms thereof. This allows others to view and remix your content. This license also allows SmartE Boxes to sublicense, display, distribute, and reproduce your content on the Site, through social media channels, and elsewhere.

 

6.4. Although SmartE Boxes requires all users to comply with these Terms, we are not responsible for the content uploaded by any user and some inappropriate user-generated apps may be created and shared via social media, email, web links, etc. You understand that when you may be exposed to User-Generated Content that you find objectionable or offensive. If you see any content that violates the Community Guidelines or these Terms, please let us know at support@SmartE Boxes.com.

 

6.5. In addition to reviewing reported User-Generated Content, SmartE Boxes reserves the right, but is not obligated, to monitor all uses of the Services. SmartE Boxes may edit, move, or delete any content that violates these Terms or the Community Guidelines, without notice.

 

6.6. All User-Generated Content is provided “as-is”. SmartE Boxes makes no warranties about the accuracy or reliability of any User-Generated Content available through SmartE Boxes. SmartE Boxes does not endorse any views, opinions, or advice expressed in User-Generated Content.

 

7. SmartE Boxes Content and Licensing

 

7.1. Except for any User-Generated Content, SmartE Boxes and its licensors own and retains all rights in and to the code, the design, functionality, and architecture of the Services, and any software or content provided through the Services (collectively “the SmartE Boxes IP”). Except for any rights explicitly granted under these Terms, you are not granted any rights in and to any SmartE Boxes IP.

 

7.2. SmartE Boxes provides support materials, including images, sounds, video, and sample code, to help users build projects. Support materials are licensed under the Creative Commons Attribution-ShareAlike 2.0 license. Please note that this does not apply to the trademarks of SmartE Boxes or other parties described in Section 7.4 below.

 

7.3 The Creative Commons Attribution-ShareAlike 2.0 license requires you to attribute any material you use to the original author. When you use SmartE Boxes support materials, or screenshots of the SmartE Boxes website, please use the following attribution: “Courtesy of SmartE Boxes. Build apps at SmartE Boxes.com/code”

 

7.4 The SmartE Boxes name and SmartE Boxes logo are property of SmartE Boxes. You will not use the SmartE Boxes name or logo to in any way without the express written permission of SmartE Boxes, including to label, promote, or endorse any product or service.

 

8. Digital Millennium Copyright Act (DMCA)

If you are a copyright holder and believe that content on the Services violates your rights, you may send a DMCA notification to support@Smarteboxes.com. For more information, including the information that must be included in a DMCA notification, see the text of the DMCA, 17 U.S.C. § 512.

 

9. Suspension and Termination of Accounts

 

9.1. These Terms shall commence on the date you accept them (in accordance with the preamble) and shall continue for a period of one (1) year, unless terminated earlier in accordance with the terms herein (the “Initial Term”). These Terms shall automatically renew for successive one (1) year periods (each, a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either party gives written notice of non-renewal at least thirty (30) days prior to the expiration of the then current-term. Either party may terminate these Terms upon written notice if the other party materially breaches these Terms and does not cure such breach (if curable) within thirty (30) days after written notice of such breach. SmartE Boxes may also terminate or suspend your right to use the Services if we believe your actions may lead to possible legal liabilities; if we believe such action will improve the security of our community or reduce another user’s exposure to financial liabilities; if we believe you are infringing the rights of third parties; if we believe you are acting inconsistently with the spirit of these Terms or the Community Guidelines; if despite our reasonable endeavors, we are unable to verify or authenticate any information you provide; or if you fail to pay all amounts charged to your account by the payment due date. In addition to terminating or suspending your account, SmartE Boxes reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress. Even after your right to use the Services is terminated or suspended, these Terms will remain enforceable against you.

 

9.2. As part of our order processing procedures, we may screen received orders for fraud or other types of unauthorized or illegal activity. We reserve the right to refuse to process an order due to suspected fraud or unauthorized or illegal activity. If we suspect fraudulent, unauthorized or illegal activity, we may reject your order or we may contact you at the phone number or email address you provided to confirm your order. We also reserve the right to cancel any accounts or refuse to ship to certain addresses due to suspected fraud or unauthorized or illegal activity. We take these measures to protect our customers as well as ourselves from fraud or other unauthorized or illegal activity.

 

9.3. If you want to delete or disable your account, please email support@smarteboxes.com.

 

10. Third Party Websites

Content on SmartE Boxes, including User-Generated Content, may include links to third party websites. SmartE Boxes is not capable of reviewing or managing third party websites, and assumes no responsibility for the privacy practices, content, or functionality of third party websites.

 

11. Indemnification

You agree to indemnify SmartE Boxes and all its affiliates, employees, agents, representatives, third party service providers, and members of their governing boards (all of which are “SmartE Boxes Entities”), and to defend and hold each of them harmless, from any and all claims, actions, and liabilities and all related costs, fees, and expenses (including attorneys’ fees) arising out of or related to your breach of these Terms or your use of the Service.

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  1. Disclaimer of Warranty

YOU ACKNOWLEDGE THAT YOU ARE USING SMARTE BOXES AT YOUR OWN RISK. THE SERVICES ARE PROVIDED “AS IS,” AND SMARTE BOXES HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, RELIABILITY, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM, INCLUDING BUT NOT LIMITED TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION CONTAINED THEREIN OR PROVIDED BY SMARTE BOXES. WITHOUT LIMITING THE FOREGOING, THE SMARTE BOXES ENTITIES DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, REGARDING USER-GENERATED CONTENT AND SMARTE BOXES MATERIALS. THE SMARTE BOXES ENTITIES AND THEIR THIRD-PARTY SERVICE PROVIDERS DO NOT REPRESENT OR WARRANT THAT ACCESS TO SMARTE BOXES WILL BE UNINTERRUPTED OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS OR LOSS OF TRANSMITTED INFORMATION, OR THAT NO VIRUSES WILL BE TRANSMITTED THROUGH THE SERVICES.

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  1. Limitation of Liability

13.1. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL THE SMARTE BOXES ENTITIES LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT THE SMARTE BOXES ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13.2. UNDER NO CIRCUMSTANCES WILL THE SMARTE BOXES ENTITIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY SMARTE BOXES IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO LIABILITY HEREUNDER.

13.3. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

13.4. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN SMARTE BOXES AND YOU.

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  1. Export Control

You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Services for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by SmartE Boxes are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer SmartE Boxes products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

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  1. Choice of Law

You agree that these Terms, for all purposes, shall be governed and construed in accordance with the laws of the State of Texas applicable to contracts to be wholly performed therein.

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  1. Dispute Resolution

16.1. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by SmartE Boxes, regardless of whether such product or service was purchased prior to or after your acceptance of this Arbitration Agreement, that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings will be held in English. This Arbitration Agreement applies to you and SmartE Boxes, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.

16.2. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to SmartE Boxes should be sent to: 3080 Valmont Road, Suite 200 Boulder, Colorado 80301. After the Notice is received, you and SmartE Boxes may attempt to resolve the claim or dispute informally. If you and SmartE Boxes do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

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16.3. Arbitration Rules. Arbitration shall be initiated through the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If JAMS is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The JAMS Streamlined Arbitration Rules governing the arbitration are available online at http://www.jamsadr.com/. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

 

16.4. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

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16.5. Time Limits. If you or SmartE Boxes pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the JAMS Rules for the pertinent claim.

 

16.6. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and SmartE Boxes, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the JAMS Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and SmartE Boxes.

 

16.7. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and SmartE Boxes in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND SMARTE BOXES WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

 

16.8. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

 

16.9. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

 

16.10. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

 

16.11. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

 

16.12. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with SmartE Boxes.

 

16.13. Small Claims Court. Notwithstanding the foregoing, either you or SmartE Boxes may bring an individual action in small claims court.

 

16.14. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

 

16.15. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.

 

16.16. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Denver County, Colorado, for such purpose.

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  1. No Waiver

No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and SmartE Boxes’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.

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  1. Entire Agreement

The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

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  1. Supplemental Terms.

Your use of, and participation in, certain Services may be subject to additional terms and such terms will either be listed in the applicable Terms of Service or will be presented to you for your acceptance before you use the supplemental Service.

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  1. Amendment.

PLEASE NOTE THAT These Terms are subject to change by SmartE Boxes in its sole discretion at any time. When changes are made, SmartE Boxes will make a new copy of the Terms available through the Services. We will also update the “Last Updated” date on these Terms. If we make any material changes, and you have registered with us to create an account, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. SmartE Boxes may require you to provide consent to the updated Terms in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s).

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  1. Notice.

Where SmartE Boxes requires that you provide an e-mail address, you are responsible for providing us with your most current e-mail address. In the event that the last e-mail address you provided to us is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Our dispatch of the e-mail containing such notice will nonetheless constitute effective notice.

Last Modified: July 10, 2020

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