Last Updated: May 23, 2018
ACCEPTANCE OF THE TERMS
The Terms are entered into by and between you (referred to herein as “you” and/or, if you have subscribed to Smith, as “Subscriber”) and Smith.ai, Inc. (“Smith,” “we,” “our,” or “us”), and they govern your access to and use of the Smith website and/or Smith software (collectively the “Platform”) and Smith Services, as defined below, whether as a guest or subscriber.
This agreement remains in full force and effect while you use the Platform. All provisions of the Terms shall survive termination by either party, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
The Platform and Services are intended only for access and use by individuals at least eighteen (18) years old. If you are not at least eighteen (18) years old, you are prohibited from both the access and usage of the Platform and Services.
CHANGES TO THE TERMS
We may revise and update these Terms from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Platform and Services thereafter. Your continued use of the Platform or our Services following the posting of revised Terms means you accept and agree to the changes.
Smith provides virtual receptionist services to its subscribers, including receptionist telephone answering; filtering marketing, spam, or other unwanted calls; caller greetings; inbound messages; voicemail services; text to mobile devices; message notifications through text and/or email; outbound calls for appointment booking and confirmation and caller feedback; and other services that may be introduced from time to time. Collectively, the services described in this paragraph and all others provided by Smith now or in the future, whether through a web portal, SMS, email, mobile application, or other interface, are called the “Services” in these Terms.
All plans are subject to, and limited by, Smith.ai’s Reasonable Use Policy.
These Terms and the Services provided do not create a joint venture, partnership, or employer-employee relationship between you and Smith.
SERVICE PLANS, PAYMENT, AND FREE TRIAL
Smith offers Service Plans and rates on a month-to-month subscription basis, the details of which can be found at https://smith.ai/web/pricing/.
You may at any time elect to change your Service Plan by contacting Smith at firstname.lastname@example.org. Changes will take effect on the next monthly payment date. Overage charges will apply, if any, until the new Service Plan takes effect.
For purposes of the Services Plans:
“Available Hours” means the hours during which Smith will provide specific Services to you, as outlined further in your selected Service Plan. No Services shall be provided on US Federal holidays or outside of the hours listed for your selected Service Plan without the express written consent of Smith.
“Receptionist Calls” means: 1) incoming calls that are made or forwarded by you to the telephone number assigned to you by Smith (“Subscriber Identifier”) that you identify as desired calls, such as calls from potential clients/customers, family members, etc., and 2) outbound calls made by Smith on your request. Inbound calls made by telemarketers, misdialed numbers, promotional companies, or callers not wanting to leave a message are not counted as Receptionist Calls.
“Live Transfer Phone Number” means the phone number(s) that we will transfer callers to, per your instruction, if they meet your specified criteria.
“Per month” refers to the calendar month.
Your Service Plan begins on the date of your first payment for your selected Services Plan (“Subscription Date”). By subscribing to the Services, you agree to pay all fees for your selected Service Plan, plus any overage charges incurred. All payments are non-refundable.
The monthly rate is charged on the Subscription Date and will be automatically charged each month on the anniversary date of your Subscription Date using the payment method provided at the time of subscription until you terminate your subscription. In other words, if you sign up on April 10, you will be automatically charged the monthly rate for your chosen Service Plan on the 10th day of each month thereafter until your subscription is cancelled.
In the event that you exceed the number of Receptionist Calls during a calendar month of the Services, you will be charged overage charges as described in the table above. Overage charges will be charged on the last business day of each month or, if your Service Plan is terminated, are required to be paid within 10 days of the termination date of your Service Plan. You authorize Smith to charge the payment method on file for any overage charges incurred.
Smith reserves the right to terminate your subscription immediately and stop providing the Services to you at any time if timely payment is not made. If an automatic payment cannot be made, Smith will request another payment method. If payment is not made within five business days, we will stop providing all Services to you, but as a convenience to you we may redirect your calls to your Live Transfer Phone Number. If payment is not made within ten business days, Smith will terminate your account.
All first-time subscribers are entitled to one 30-day or 10 Receptionist Calls, whichever occurs first, trial during which Smith will provide the Services during the Available Hours of 9am-9pm EST free of charge (the “Free Trial”). At the conclusion of the Free Trial, the subscriber may subscribe to a Service Plan or discontinue the Services. Smith may cancel the Free Trial account immediately following the Free Trial if a subscription is not processed. Free Trials are not available to prior Subscribers.
JURISDICTION SPECIFIC TERMS
EU/EEA and Switzerland Data Processing
INFORMATION WE COLLECT AND OUR COMMITMENT TO CONFIDENTIALITY
Information Collected by Smith
When you subscribe to the Services, our trained staff will work with you to determine how we can provide the most effective receptionist services to you by learning what types of calls you generally receive and how you would like each call handled. For each type of call, such as a potential client or solicitation, you decide what information we collect from the caller, if any, and how we will convey any desired information to you.
Confidentiality of Information Collected for You
All information collected by Smith while providing the Services to you, including information received during Receptionist Calls, or provided for your subscription (“Subscriber Information”), is kept strictly confidential and is only shared with Smith’s staff that needs the information to provide the Services to you and your authorized staff. The utmost confidentiality of the Subscriber Information is guaranteed, so we do not require any separate confidentiality agreements to provide our Services to you in a manner that maintains confidentiality.
Using, Storing, and Removing Your Subscriber Information
All Subscriber Information is jointly owned by Smith and you. Smith retains this joint ownership solely so that it has the right to store the information collected on its secure servers and use it to provide excellent Services to you, such as relaying messages to you through text and email, identifying spam callers and solicitations, and improving our Services. Smith will use Subscriber Information for the sole purpose of providing the Services pursuant to the instructions that you provide, and under no circumstances will Smith sell Subscriber Information or share it in any manner not specified in these Terms.
If we are required to share Subscriber Information by law, we will notify you promptly upon receiving such a request. We will work with you to keep the Subscriber Information confidential if possible, but we will honor any applicable legal obligations regarding sharing the Subscriber Information.
Smith stores your Subscriber Information in a segregated account that only contains your Subscriber Information. Each Subscriber can only access and use the information in its own Smith account. This allows us to only allow Smith staff working on your account to access your Subscriber Information.
We will respond to your written request to delete specific Subscriber Information or your Smith account (including all Subscriber Information) within 3 business days. After confirming that you understand that deletion of the Subscriber Information and/or your Smith account will be permanent, we will delete the requested information and rescind all ownership rights to the Subscriber Information that was deleted.
Additional Measures to Keep Your Subscriber Information Confidential
In addition to not sharing, selling, or using Subscriber Information in any manner not described in these Terms and expressly agreed by you, we adhere to the following confidentiality protections:
Our staff are trained to follow the confidentiality measures described in these Terms and must sign a Non-Disclosure Agreement requiring them to keep all Subscriber Information confidential prior to starting to work with any Subscriber Information.
We perform regular malware scanning of the Platform and all servers and computers used by us to support the Platform.
Subscriber Information is encrypted through the Platform with Secure Socket Layer technology (SSL) and is also encrypted when it is stored by us to prevent unauthorized parties from viewing such information.
Our staff will not ask any caller for information that is not specifically requested by you.
For our attorney clients, we understand and respect your obligations regarding attorney-client confidentiality, including under Rule 5.3 of the Model Rules of Professional Conduct, and uphold a commitment to confidentiality. Our staff’s conduct is compatible with your professional obligations.
Smith.ai shall report to Subscriber, with all relevant details, any event that Smith.ai reasonably believes represents unauthorized access to, disclosure of, use of, or damage to Content (a “Security Breach”). Smith.ai shall make such report within 48 hours after learning of the Security Breach.
In the event of a Security Breach, Smith.ai shall (a) cooperate with Subscriber to identify the cause of the breach and to identify any affected Content; (b) assist and cooperate with Subscriber in investigating and preventing the recurrence of the Security Breach; (c) assist and cooperate with Subscriber in any litigation or investigation against third parties that Subscriber undertakes to protect the security and integrity of Content; and (d) mitigate any harmful effect of the Security Breach.
Confidentiality is a Two-Way Street
While we employ the practices described in these Terms to provide the Services, we also follow your instructions regarding how we can best provide the Services to you. Therefore, please ensure that any instructions provided to Smith regarding your account comply with your obligations and confidentiality expectations. We are not responsible for breaches of confidentiality that may occur when we are following your instructions, such as transmitting information to an unsecure server specified by you or the acts or omissions of your authorized staff members. Our goal is to be a valued member of your business, so we may contact you if we believe that a process could be improved, but our role in your business is limited to the Services that you order.
In its provision of the Services, Smith will transcribe messages from calls that you receive. However, Smith does not monitor or censor such messages for content and is not responsible, or have any liability whatsoever, for the content of Subscriber Information or messages that are received by, on the behalf of, or intended for the Subscriber.
CANCELLATION OR TERMINATION OF THE SERVICES
Subscriber may cancel the Services at any time by notifying Smith at email@example.com or +1 (650) 727-6484. Services will continue until the end of the current subscription month. Smith does not provide a refund for early cancellation of Services for any reason.
Smith may cancel the Services in the following circumstances:
If Smith has any reason whatsoever to believe that the Services are being used to contravene any law, the Services shall be immediately cancelled. Any such cancellation shall be at the sole discretion of Smith and without refund or liability to Subscriber.
If Subscriber does not pay for the Services by the required due date, Smith may cancel or suspend the Services immediately.
If Subscriber violates these Terms in any manner, Smith may cancel or suspend the Services and will provide notice to Subscriber of the violation.
Upon 10 business days’ notice to Subscriber, Smith may cancel the Services for any or no reason.
After Termination or Cancellation
In the event that the Services are canceled or otherwise terminated, the Subscriber Identifier assigned to Subscriber may be immediately cancelled for use by Subscriber. At Smith’s sole discretion, the Subscriber may be given the option to: i) keep the Subscriber Identifier as a useable phone line for $10/month, or ii) Smith may choose to forward incoming calls made to the Subscriber Identifier to Subscriber for 10 days.
Upon cancellation or termination of the Services, Smith shall not be responsible or liable for the receipt or delivery of any messages intended for Subscriber through the Services or Subscriber Identifier.
RESTRICTIONS ON THE SERVICES
Subscriber is prohibited from any of the following when using the Platform or subscribing to the Services:
Transmitting or causing to transmit any material that is derogatory, racist, abusive, threatening, obscene, hateful, or in any other way objectionable to others or illegal;
Using the Services to “spam” or cause mischief to others;
Using the Services in any way that causes, or may cause, damage to or impairment of the availability or accessibility of the Services, or in any way which is unlawful, illegal, fraudulent, or harmful, or in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity;
Reproducing, distributing, modifying, creating derivative works of, republishing, downloading, storing, or transmitting any of the material on the Platform, except as it is created and owned by Subscriber;
Using any device, software, or routine that interferes with the proper working of the Platform or Services;
Introducing any viruses, trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful; or
Otherwise attempt to interfere with the proper working of the Platform or Services.
Smith represents and warrants that it has the right to use, and is the sole owner of all right, title, and interest in and to, all intellectual property rights relating to: i) the voice-over IP and website technology platform underlying the Services (the “Application”), and ii) the Services, including all copyrights and all trademarks, service marks, and trade names associated with Smith and the Services. Smith represents and warrants that it has a license or rights to use any third party components embedded in the Application. Smith does not grant you any intellectual property rights in the Application or Services, and all rights not expressly granted in these Terms are reserved by Smith.
USERS OUTSIDE THE UNITED STATES
The Platform and Services are controlled and operated from the United States and subject to its laws. If you choose to access the Platform or Services outside of the United States, you do so at your own risk and are responsible for complying with all applicable laws, rules, and regulations.
You agree to indemnify Smith and its directors, officers, employees, agents, successors, assigns, and affiliates from and against all third party claims, judgments, costs, liabilities, damages or expenses, including reasonable attorneys’ fees and costs, arising out of, resulting in any way from, or made by: i) a breach of any provision, representation, or warranty set forth in these Terms; ii) callers using Subscriber’s Subscriber Identifier as a result of actions of or failure to act by Subscriber; and iii) any content provided by Subscriber for its Online Profile or the Services.
Smith will indemnify Subscriber and its directors, officers, employees, agents, successors, assigns, and affiliates from and against all third party claims, judgments, costs, liabilities, damages, or expenses, including reasonable attorneys’ fees and costs, arising out of or resulting in any way from i) Smith’s breach of any provision, representation, or warranty set forth in these Terms; ii) claims made by callers due to the gross negligence or intentional misconduct of Smith; or iii) any claim asserted by a third-party that the Services or Application infringes any of such third party’s patents or other intellectual property rights. The foregoing obligations in subparagraph (iii) do not apply with respect to content provided by Subscriber for its Online Profile.
EXCLUSION OF LIABILITY
Subscriber agrees and acknowledges that Smith shall not be liable for any claims of any kind or nature whatsoever (including claims for negligence) that might arise directly or indirectly out of any act or omission, use, or misuse of any Services by Subscriber or for any delays, mistakes, or errors in conveying Subscriber Information to Subscriber by Smith. To the extent this provision fails to fully and completely exclude any claim and/or to the extent any third party might make any claim against Smith in any way related to Subscriber’s use or misuse of Services or anything done or any delays, mistakes, or errors in conveying Subscriber Information to Subscriber by Smith, then Subscriber indemnifies Smith against any and all liabilities losses expenses and costs that might be suffered or incurred by Smith as a direct or indirect consequence of any such claims being made.
DISCLAIMER OF WARRANTIES
THE APPLICATION AND SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, OR ACCURACY OF CONTENT. SMITH MAKES NO WARRANTY OR REPRESENTATION THAT SUBSCRIBER’S USE OF THE APPLICATION OR SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS OR WILL BE UNINTERRUPTED OR ERROR-FREE.
WITHOUT LIMITING THE FOREGOING, NEITHER SMITH NOR ANYONE ASSOCIATED WITH SMITH REPRESENTS OR WARRANTS THAT THE PLATFORM, ITS CONTENT, OR THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE PLATFORM OR THE SERVER THAT MAKES IT OR THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE PLATFORM OR THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
LIMITATION ON LIABILITY
EXCEPT AS OTHERWISE EXPRESSLY STATED, IN NO EVENT WILL SMITH BE LIABLE TO SUBSCRIBER OR ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, REGARDLESS OF THE BASIS OR NATURE OF THE CLAIM OR LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, RESULTING FROM THE SERVICES, ANY USE OF THE APPLICATION, OR ANYTHING PERTAINING TO THE TERMS, INCLUDING WITHOUT LIMITATION ANY LOSS OF GOODWILL, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF SUCH PARTY HAS EXPRESSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE AGGREGATE LIABILITY FOR ANY AND ALL OF SUBSCRIBER’S CLAIMS AGAINST SMITH UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ARISING OUT OF OR RELATED TO SERVICES OR APPLICATION EXCEED THE AMOUNTS ACTUALLY PAID BY SUBSCRIBER TO SMITH DURING THE 12 MONTHS PRIOR TO THE DATE A CLAIM IS MADE.
Smith may assign, transfer, or sub-contract Smith’s rights and/or obligations under these Terms without notifying you or obtaining your consent. You may not assign, transfer, or sub-contract your rights and/or obligations under these Terms without Smith’s prior written consent.
WAIVER AND SEVERABILITY
No waiver by Smith of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Smith to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect.
YOUR COMMENTS AND CONCERNS
All feedback, comments, requests for technical support, and other communications relating to the Platform or Services should be directed to: firstname.lastname@example.org.